BULLETIN    OF  THE    UNIVERSITY   OF    WISCONSIN 

NO.  149 

History  Series,  Vol.  i,  No.  3,  pp.  2i3'286 


LINCOLN'S  SUSPENSION  OF  HABEAS  CORPUS 
AS  VIEWED  BY  CONGRESS 


BY 


GEORGE  CLARKE  SELLERY 

Asnitant  Profesior  of  Htntory  in  the  University  of  WiBComin 


Published  bi-monthly  by  authority  of  law  with  the  approval  of  the  Regents 

of  the  Univenity  and  entered  at  the  post  office  at 

Madison  as  second-class  matter 


MADISON,  WISCONSIN 
APRIL,  1907 

PRICE    35    CSNTS 


^ttiUtln  of  the  ^xxixisv&itvi  of  ^i&coxtisiin 


©ottttnittce    of   publication 


CHARLES  RICHARD  VAN  HISE.  President  of  the  University 


WALTER  McMYNN  SMITH.  Chairman 
WILLARD  GROSVENOR  BLEYER.  Secretary 
Thomas  Sewall  Adams,  Editor  of  Economics  and  Political  Science 

Series 
Victor  Coffin,  Editor  of  History  Series 
Edward  Kremers,  Editor  of  Science  Series 
Daniel  Webster  Mead,  Editor  of  Ensineerins  Series 
Edward  Thomas  Owen,  Editor  of  Philolosy  and  Literature  Series 


BULLETIN    OF  THE    UNIVERSITY   OF    WISCONSIN 

NO.  1-49 

History  Series,  Vol.  i,  No.  a,  pp.  ata-zae 


LINCOLN'S  SUSPENSION  OF  HABEAS  CORPUS 
AS  VIEWED  BY  CONGRESS 


BY 

GEORGE  CLARKE  SELLERY 

Assistant  Professor  of  History  in  the  Uniyerslty  of  Wisconsin. 


Published  bi-monthly  by  authority  of  law  with  the  approval  of  the  Regenti 

of  the  University  and  entered  at  the  post  office  at 

Madison  as  second-class  matter 


MADISON.  WISCONSIN 
APRIL.  1907 


mm 


TABLE  OF  CONTENTS. 


PAGE 

Introduction 217 

Chapter  I — The  Habeas  Corpus  Problem. 

The  early  suspensions  of  the  privilege  of  the  writ 219 

The  President's  submission  of  the  suspensions  to  Congress 221 

Chapter  II — The  Inaction  op  the  Extra  Session. 

Senator  Henry  Wilson's  "Bill  No.  1"  of  July  4,  1861 223 

The  substituted  joint  resolution  of  J  uly  6 225 

Habeas  corpus  features  of  the  resolution 227 

The  ambiguity  of  the  last  clause  of  the  resolution    228 

Probable  explanation  of  the  ambiguity 229 

The  Senate's  loss  of  interest  in  the  resolution  after  July  10 231 

Senate  Bill  No.  33  of  July  17 232 

The  failure  of  the  bill,  August  2 233 

The  failure  of  the  joint  resolution 234 

Reasons  for  the  failure  of  the  resolution 236 

Significance  of  the  failure 237 

Chapter  III — The  Inaction  of  the  Second  Session. 

Habeas  corpus  material  of  the  session 239 

House  Bill  No.  362  as  amended  July  7,  1862 240 

The  ambiguity  of  the  third  section  of  the  bill 240 

Passage  of  the  bill  through  the  House 242 

The  Senate's  appreciation  of  the  ambiguity  of  the  third  section 

of  the  bill 242 

Failure  of  the  bill  in  the  Senate 245 

Chapter  IV— The  Action  of  the  Third  Session. 

Opinion   that  it  was  too  late  for  Congress  to  assert  exclusive 

jurisdiction  over  suspension  246 

Stevens's  House  Bill  No.  591  of  December  8,  1863 247 

It  was  not  a  condemnation  of  suspension  by  the  President 249 

Swift  passage  of  the  bill  through  the  House 251 


216  CONTENTS, 

Chapter  IV. — The  Action  of  the  Third  Session— contiaued.  page 

The  Senate's  substitute  for  House  Bill  No.  591 2.53 

It  did  not  reflect  upon  the  legitimacy  of  suspension  by  the  Pres- 
ident    253 

Its  passage  through  the  Senate    254 

The  Senate's  substitute  for  House  Bill  No,  362 255 

The  ambiguity  of  the  substitute;  its  enactment  that  the  Presi- 
dent is  authorized  to  suspend 256 

Doolittle's  explanation  of  the  "is  authorized" 257 

The  passage  of  the  substitute  by  the  Senate    260 

The  House's  refusal  to  concur  and  the  appointment  of  a  com- 
mittee of  conference 261 

The  composition  of  the  committee  of  conference  bill 262 

Its  enactment  into  law,  March  3,  1863 263 

Chapter  V — Conclusions. 

Congress  recognized  the  President's  right  to  suspend 264 

Congress  nevertheless  asserted  its  right  to  assume  control 265 

Importance  of  the  precedent  established  1861-1863 266 

Appendices. 

I.     Habeas  Corpus  bills  passed  by  either  House,  1861-1863 268 

II.    The  Habeas  Corpus  Act  of  March  3,  1863 278 

Bibliography 284 


LINCOLN'S  SUSPENSION  OF  HABEAS  CORPUS. 


INTRODUCTION. 

The  suspension  of  the  privilege  of  the  writ  of  habeas  cor- 
pus by  President  Lincoln  in  1801  gave  rise  to  a  considerable 
mass  of  pamphlets,  periodical  articles  and  more  ephemeral 
writings/  and  to  a  large  number  of  legal  decisions.-  In 
these,  considerations  of  law,  history  and  expediency  are  mar- 
shalled in  the  main  against  but  to  some  extent  for  the  claim  of 
the  President  to  suspend  under  the  Constitution.  A  careful 
working-over  of  this  material  led  the  writer  to  the  conclusion 
that  the  Gordian  knot''  of  habeas  corpus  suspension  in  the 
United  States  is  extremely  difficult  if  not  impossible  to  untie. 
Further  investigation  led  to  the  belief  that  a  detailed  his- 
torical exposition  of  the  attitude  of  Congress  toward  Lincoln's 
suspension  of  the  privilege  of  the  writ  would  not  only  cast 
light  upon  the  psychology  of  Congress  in  war-time,  but  might 
show  that  the  knot  was  cut  while  the  pamphleteers  were  still 
at  work. 

The  only  possible  federal  depositories  of  the  power  to  sus- 
pend are  Congress  and  the  President.  Until  1861  the  view 
that  Congress  alone  could  suspend  was  generally  accepted,  or 


^  See  list  of  pamphlets,  etc.,  appended  to  S.  G.  Flshei-'s  The  Suspension  of 
Habeas  Corpus  during  the  War  of  the  Rebellion,  in  Political  Science  Quarterly, 
Tol.  Ill,  pp.  485-488 ;  Democratic  State  Tlatforms,  1861,  1862 ;  Congressional 
Olobe,  37th  Congress,  passim. 

*See  Law  Digests  sub  Habeas  Corpus. 

3  Cf .  Lieber  to  Sumner,  January  8,  186.":  "Every  one  who  maintains  that 
it  can  he  proved  with  absolute  certainty  that  the  framers  of  the  Constitution 
meant  that  Congress  alone  should  have  the  power  [to  suspend  the  privilege  of 
the  writ]  .      .      is  in  error     ...     It  cannot  mathematically  be  proved 

from  the  Constitution  itself,  or  from  analogy  which  does  not  exist,  or  from 
the  debates,  or  history."  Life  and  Letters  of  Francis  Lieber,  ed.  by  Perry, 
1882,  pp.   328-329. 


[5] 


218  BULLETIN    OF    THE    UNIVERSITY   OF    WISCONSIN". 

at  least  was  nowhere  controverted.*  The  President's  action 
in  1861  was  a  practical  denial  of  the  correctness  of  this  view. 
The  stand  which  Congress  took  on  this  seeming  encroachment 
upon  its  hitherto  unquestioned  jurisdiction  manifestly  merits 
careful  examination.  If  Congress  acquiesced  in  Presidential 
suspension,  if,  as  this  essay  attempts  to  demonstrate,  it  con- 
ceded the  President's  right  under  the  given  circumstances  to 
suspend,  the  historical  precedent  thus  established  must  be 
given  great  weight.  It  is  true  that  the  conditions  of  the  time 
were  abnormal,  and  true  that  "acts  committed  in  time  of  war, 
under  the  pressure  of  necessity  and  self-preservation,  are  not 
likely  to  ripen  into  precedents  for  times  of  peace.""  But 
federal  suspension  of  the  privilege  of  the  writ  of  habeas  cor- 
pus cannot  constitutionally  occur  in  time  of  peace ;  it  is  a  pro- 
ceeding which,  fortunately  for  the  people  of  the  United  States, 
can  be  resorted  to  only  in  most  abnormal  times.  The  import- 
ance of  the  decision  of  Congress  in  18G1-1863  upon  the  ques- 
tion of  the  President's  right  to  suspend  is  therefore  not  weak- 
ened by  the  conditions  under  which  the  decision  was  rendered. 


*'I  had  supposed  it  to  be  one  of  those  points  of  constitutional  law  upon 
which  there  was  no  difiference  of  opinion,  and  that  it  was  admitted  on  all 
hands  that  the  privilege  of  the  Writ  could  not  be  suspended,  except  by  act  of 
•Congress."  Taney,  C.  J.,  in  ex  parte  Merryman,  Taney's  Circuit  Court  De- 
cisions, p.  255. 

"The  better  opinion  .  .  .  among  judges  and  lawyers  and  constitu- 
tional commentators,  surely  is  that  the  writ  of  /labeas  corpus  was  never  in- 
tended by  the  Constitution  to  be  suspended  except  in  pursuance  of  an  act  of 
Congress.  The  courts  have  so  held,  judges  have  so  stated,  commentators  have 
so  written,  and  not  a  commentator  can  be  found,  who  has  written  on  the  Con- 
stitution before  this  rebellion,  who  ever  disputed  that  proposition.  There  is 
great  diversity  of  opinion  in  the  country  now."  Trumbull,  in  the  Senate,  De- 
cember 9,  1862.     Glohe,  3d.   S.   37th  Cong.   p.   31. 

^  Lyman  Tremain  in  N.  Y.  Daily  Tribune,  September  11,  18G1. 


[6] 


8ELLEKY LINCOLN's    SUSPENSION    OF    HABEAS    COEPUS.       219 


CHAPTER  I. 

THE  HABEAS  CORPUS  PROBLEM. 

The  exclusive  right  of  Congress  to  suspend  the  privilege 
of  the  writ  of  habeas  corpus^  was  challenged  by  President 
Lincoln  at  the  outset  of  the  Civil  War.  April  27,  1861,  appre- 
hensive for  the  safety  of  the  isolated  capital,  the  President 
issued  an  order  authorizing  General  Winfield  Scott  to  suspend 
the  writ  of  habeas  corpus.  The  order,  which  practically  em- 
powered General  Scott  to  arrest  and  detain  at  will,"  was  as 
follows :  "You  are  engaged  in  repressing  an  insurrection 
against  the  laws  of  the  United  States.  If  at  any  point  on  or 
in  the  vicinity  of  any  military  line  which  is  now  or  which 
shall  be  used  between  the  city  of  Philadelphia  and  the  city  of 
Washington  you  find  resistance  which  renders  it  necessary 
to  suspend  the  writ  of  habeas  corpus  for  the  public  safety,  you 
personally  or  through  the  officer  in  command  at  the  point 
where  resistance  occurs,  are  authorized  to  suspend  that  writ."^ 


^The  customary  phrasing  is  "suspend  the  writ  of  habeas  corpus." 
'It  is  still  a  disputed  point  in  legal  theory  whether  the  suspension  of  the 
privilege  of  the  writ  authorizes  arrests.  The  oMter  dictum  of  the  Supreme 
Court,  in  eoo  parte  Milligan,  that  the  suspension  "does  not  authorize  the  arrest 
of  any  one,  but  simply  denies  to  one  arrested  the  privilege  of  this  writ  in 
order  to  obtain  his  liberty,"  was  a  flat  denial  of  the  correctness  of  the  prac- 
tice of  the  Civil  War.  Four  minority  justices,  however,  including  Chief 
Justice  Chase,  upheld  the  legality  of  the  practice.  See  4  Wallace,  pp.  115, 
137.  The  President  in  his  message  of  the  extra  session,  July  4.  1861,  said 
that  he  had  authorized  General  Scott  to  suspend  the  privilege  of  the  writ,  or, 
as  he  explained,  "to  arrest  and  detain,  without  resort  to  the  ordinary  pro- 
cesses and  forms  of  law,  such  individuals  as  he  might  deem  dangerous  to  the 
public  safety."  Works,  vol.  II.  p.  59.  See  also  the  President's  letter  to 
Erastus  Corning  and  others,  June  12,  1863.  Ibid.  p.  348.  See  also  Seward 
to   Lyons,   October   14,    1861.     115   War  Records,   p.   633. 

»115  War  Records,  p.  19.  The  words,  "on  or  in  the  vicinity  of  any  military 
line"  etc.,  were  a  euphemism  for  "anywhere  in  Maryland."  See.  for  example, 
Latham's  statement  in  the  Senate,  July  20,  1861.  Oloie,  1st  S.  37th  Cong. 
Appendix,  p.  19. 


m 


220  BULLETIN    OF    THE    UNIVERSITY    OF    WISCOXSIN. 

Hard  upon  this  order  came  the  proclamation  of  May  10^ 
1861,  in  which  the  President  authorized  the  United  States 
commander  on  the  Florida  coast  to  suspend  the  writ,  com- 
manding him  "to  permit  no  person  to  exercise  any  office  or 
authority  upon  the  islands  of  Key  West,  Tortugas  and  Santa 
Rosa  which  may  be  inconsistent  with  the  laws  and  the  Con- 
stitution of  the  United  States,  authorizing  him  at  the  same 
time  if  he  shall  find  it  nesessary  to  suspend  there  the  writ  of 
habeas  corpus  and  to  remove  from  the  vicinity  of  the  United 
States  fortresses  all  dangerous  or  suspected  persons."* 

These  are  the  two  authorizations  of  suspension  which  were 
the  text  for  the  habeas  corpus  debates  in  the  first  session  of 
the  thirty-seventh  Congress.  It  is  not  necessary  to  refer 
specifically  to  any  of  the  subsequent  orders.^  The  practice 
which  was  almost  straightway  adopted  was  to  dispense  with  any 
general  order  to  suspend,  and  to  make  extraordinary  arrests 
whenever  and  wherever  necessary,  the  theory  being  that  such 
arrests  were  ipso  facto  suspensions  of  the  writ.  Except  at  the 
very  beginning  of  the  war  there  was  no  hard  and  fast  line  to 
be  determined  by  reference  to  this  or  that  particular  order  of 
suspension  beyond  which  the  Government  could  not  consist- 
ently, or  would  not,  make  summary  arrests.  No  one,  by 
virtue  of  residence  in  even  the  most  peaceful  portions  of  Union 
territory,  was  safe  from  executive  apprehension. 

The  extra  session  of  Congress  began  July  4,  1861,  and  July 
5  the  message  of  the  President  was  read  in  both  Houses.* 
In  it  he  reviewed,  among  other  matters,  the  measures  he  had 
taken  to  meet  the  crisis.  The  relevant  portion  of  the  message 
is  as  follows:  "Recurring  to  the  action  of  the  Government, 
it  may  be  stated  that  at  first  a  call  was  made  for  seventy-five 
thousand  militia ;  and  rapidly  following  this  a  proclamation 
was  issued  for  closing  the  ports  of  the  insurrectionary  dis- 
tricts by  proceedings  in  the  nature  of  a  blockade.  So  far  all 
was  believed  to  be  strictly  legal.  At  this  point  the  insur- 
rectionists announced  their  purpose  to  enter  upon  the  prac- 
tise of  privateering. 


*115  War  Records,  p.  19. 

■*  They  may  be  found  In  the  War  Records. 

^Glohe,  1st   S.  37th  Cong.   pp.   11,  1.3. 

[8] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     221 

"Other  calls  were  made  for  volunteers  to  serve  for  three 
years,  unless  sooner  discharged,  and  also  for  large  additions 
to  the  regular  Army  and  Navy.  These  measures,  whether 
strictly  legal  or  not,  were  ventured  upon  under  what  appeared 
to  be  a  popular  demand  and  a  public  necessity,  trusting  then 
as  now  that  Congress  would  readily  ratify  them.  It  is  be- 
lieved that  nothing  has  been  done  beyond  the  constitutional 
competency  of  Congress. 

"Soon  after  the  first  call  for  militia,  it  was  considered  a  duty 
to  authorize  the  commanding  general  in  proper  cases,  accord- 
ing to  his  discretion,  to  suspend  the  privilege  of  the  writ  of 
habeas  corpus,  or,  in  other  words,  to  arrest  and  detain,  without 
resort  to  the  ordinary  processes  and  forms  of  law,  such  in- 
dividuals as  he  might  deem  dangerous  to  the  public  safety. 
This  authority  has  purposely  been  exercised  but  very  spar- 
ingly. Nevertiieless,  the  legality  and  propriety  of  what  has 
been  done  under  it  are  questioned,  and  the  attention  of  the 
country  has  been  called  to  the  proposition  that  one  who  is 
sworn  to  'take  care  that  the  laws  be  faithfully  executed'  should 
not  himself  violate  them.  Of  course  some  consideration  was 
given  to  the  questions  of  power  and  propriety  before  this  mat- 
ter was  acted  upon.^  The  whole  of  the  laws  which  were  re- 
quired to  be  faithfully  executed  were  being  resisted,  and  fail- 
ing of  execution  in  nearly  one  third  of  the  States.  Must  they 
be  allowed  to  finally  fail  of  execution,  even  had  it  been  per- 
fectly  clear   that   by   the   use   of   the   means   necessary   to   their 


'The  subject  of  habeas  corpus  suspension  appears  to  have  been  first  debated 
by  President  and  Cabinet  when  the  special  session  of  tlie  Maryland  Legislature, 
called  for  April  26,  was  under  consideration.  It  was  believed  that  the  Legis- 
lature would  probably  attempt  some  act  of  secession.  The  question  was 
would  it  not  be  wise  to  prevent  the  meeting  of  the  Legislature.  The  Presi- 
dent decided,  after  Attorney-General  Bates  had  submitted  his  legal  notes  and 
other  Cabinet  officers  had  given  their  advice,  that  it  would  be  neither  justifi- 
able nor  effective  to  take  the  proposed  action  against  the  Legislature,  which 
had,  he  said,  clearly  a  legal  right  to  assemble.  April  '2'>.  he  gave  his  special 
directions  to  General  Scott :  "I  therefore  conclude  that  It  Is  only  left  to  the 
commanding  general  to  watch  and  await  their  action,  which,  if  it  shall  be  to 
arm  their  people  against  the  United  States,  he  is  to  adopt  the  most  prompt  and 
efficient  means  to  counteract,  even  if  necessary  to  the  bombardment  of  their 
cities,  and.  in  the  extremest  necessity,  the  suspension  of  the  writ  of  haheaa 
corpus."  Works,  vol.  II,  p.  38;  Nicolay  and  Hay,  vol.  IV,  p.  167.  No  au- 
thority was  exercised  under  this  order.  Such  an  attitude  toward  suspension 
must  have  seemed  strange  a  few  months  later. 


[9] 


222  BULLETIN"   OF    THE    UNIVERSITY    OF    WISCONSIISr. 

execution   some  single   law,   made   in   such  extreme  tenderness 
of  the  citizen's  liberty,  that  practically  it  relieves  more  of  the 
guilty   than   of   the   innocent,   should   to    a   very   limited   extent 
be  violated?     To  state  the  question  more  directly:     are  all  the 
laws  but  one  to  go  unexecuted,  and  the  Government  itself  go 
to  pieces,  lest  that  one  be  violated?     Even  in  such  a  case, 
would  not  the  official  oath  be  broken  if  the  Government  should 
be  overthrown,    when  it  was    believed    that    disregarding    the 
single  law  would  tend  to  prevent  it?     But  it  was  not  believed 
that  this  question  was  presented.     It  was  not  believed  that 
any   law  was  violated.^     The   provision   of   the    Constitution 
that  'the  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended   unless    when,    in  cases    of    rebellion    or    invasion ,  the 
public   safety  may   require   it,'   is   equivalent   to   a  provision — is 
a   provision — that   such   privilege   may   be   suspended    when,    in 
case  of  rebellion  or  invasion,  the  public  safety  does  require  it. 
It  was  decided  that  we  have  a  case  of  rebellion,  and  that  the 
public    safety   does     require   the    qualified     suspension     of    the 
privilege  of  the  writ  which  was  authorized  to  be  made.     Now, 
it  is   insisted  that  Congress,   and  not  the  Executive,   is  vested 
with  this  power.     But  the  Constitution  itself  is  silent  as  to 
which  or  wdio  is  to  exercise  the  power;  and  as   the  provision 
was  plainly  made  for  a  dangerous  emergency,  it  cannot  be  be- 
lieved the  framers  of  the  instrument  intended  that  in  every 
case  the  danger  should  run  its  course  until  Congress  could  be 
called  together;  the  very  assembling  of  which  might  be  pre- 
vented, as  was  intended  in  this  case,  by  the  rebellion. 

"No  more  extended  argument  is  now  offered,  as  an  opinion, 
at  some  length,  will  probably  be  presented  by  the  Attorney 
General.®  Whether  there  shall  be  any  legislation  upon  the 
subject,  and  if  any,  what,  is  submitted  entirely  to  the  better 
judgment   of   Congress."^*' 

The  habeas  corpus  issue  was  thus  placed  squarely  before  Con- 
gress by  the  President  himself. 


*  Note  especially  the  original  draft  of  this  portion  of  the  message  in  Nicolay 
and   Hay,  vol.   IV,  pp.    176-177. 

•For  this  opinion,  see  115  War  Records,  pp.  20  ff.  The  opinion  is  dated 
July  5 ;  it  was  made  public  July  13,  in  response  to  a  House  resolution.  Globe, 
1st.   S.  37th  Cong.   p.    117. 

^'>  Works,  vol.  II,  pp.  59-60. 

[10] 


SELLEEY — Lincoln's  suspension  of  habeas  corpus.     223 


CHAPTER  II. 

THE  INACTION  OF  THE  EXTRA  SESSION. 

The  President's    message  was    read  to  the    Houses  on    the 
afternoon  of  July  5  at  two  o'clock.^     Its  contents  do  not  ap- 
pear   to  have   been  made    public  before  that    time."     Neverthe- 
less, a  most  important  part  of  the  work  of  the  extra  session 
had  already  been  outlined  to  the  Senate  by  Senator  Henry  Wil- 
son of  Massachusetts,  who  had  been,  in  the  session  of  March, 
1861,  chairman  of  the  Committee  on  Military  Affairs  and  the 
Militia — the   leading  committee   in   time  of   war.     July  4,   even 
before  the  Senate  was  fully  organized  or  the  standing  commit- 
tees were  appointed.  Wilson  gave  notice  that  he  would  the 
next  day  ask  leave  to  introduce  six  bills,  the  titles  of  which 
he  read.     The  first  bill  was  entitled,  ''A  bill  to  ratify  and  con- 
firm certain  acts  of  the  President  for  the  suppression  of  in- 
surrection   and    rebellion."     The    others    made    provision    for 
drawing  out  the  military  strength  of  the  Union.^     The  Senate 
almost  immediately  adjourned. 


^Globe,  1st.  S.  37th  Cong.  pp.  11,  13;  N.  Y.  Daily  Tribune,  July  6. 

2  "The  President's  Message  suffers  sadly  in  style  and  diction  from  being 
transmitted  to  us  by  telegraph.  Some  of  the  more  obvious  blunders  we  hare 
been  able  to  correct.  .  .  Had  private  copies  of  the  Message  been  dispatched 
by  mall  or  express  on  the  evening  of  the  4th  to  the  President's  most  trusted 
agent  or  friend  in  each  of  the  great  cities,  with  instructions  to  deliver  them 
to  each  daily  newspaper  only  upon  notice  by  telegraph  that  the  reading  In 
Congress  had  been  commenced,  his  most  important  document  would  have  ap- 
peared in  the  regular  evening  editions  of  yesterday's  journals.  .  .  "  Ed- 
itorial note  in  N.  Y.  Daily  Tribnne  of  July  6,  1861.  See  also  N.  Y.  Herald 
and  N.   Y.   Times  of  same  date. 

^  The  titles  of  these  five  bills  were :  "A  bill  to  authorize  the  employment  of 
volunteers  to  aid  in  enforcing  the  laws  and  protecting  public  property ;  A  bill 
to  Increase  the  present  military  establishment  of  the  United  States ;  A  bill 
providing  for  the  better  organization  of  the  military  estatiiishment ;  A  bill  to 
promote  the  efficiency  of  the  Army ;  and  A  bill  for  the  organization  of  a  vol- 
unteer militia  force,  to  be  called  the  National  Guard  of  the  United  States." 
Globe,  1st.  S.  37th  Cong.  p.  2. 


[11] 


224  BULLETIN   OF    THE    UNIVERSITY    OF    WISCONSIN. 

The  text  of  all  six  bills  seems  to  have  been  available  July  4.* 
"Bill  No.  1"  was  substantially  in  the  following  words: 

"A  Bill  to  Ratify  and  Confirm  certain  acts  of  the  President 
for  the  Suppression  of  Insurrection  and  Rebellion. 

"Whereas,  since  the  adjournment  of  the  last  Congress,  large 
combinations  of  men  assuming  to  act  in  the  name  and  on  be- 
half of  some  of  the  States  of  the  Union,  have  openly  set  at  de- 
fiance the  authority  and  laws  of  the  United  States,  and  have 
arrayed  themselves  in  hostility  against  the  Government, 
threatening  its  overthrow;  and  whereas,  under  these  ex- 
igencies and  for  the  purpose  of  resisting  such  combinations 
and  suppressing  such  insurrection  and  rebellion  and  causing 
the  laws  of  the  United  States  to  be  executed  and  preserving 
the  Government,  the  President  has  called  forth  the  militia  of 
several  states,  and  large  numbers  of  such  militia,  in  obedience 
to  such  call,  are  now  in  the  service  of  the  United  States; 
therefore 

"Be  it  enacted  .  .  .  That  all  the  acts  and  proceedings 
of  the  President  in  calling  into  the  service  of  the  United  States 
the  militia  of  the  several  States  for  the  purpose  aforesaid,  and 
all  acts  and  proceedings  incident  thereto;  and  all  acts  and 
proceedings  relating  to  the  operations  of  the  military  and 
naval  forces  of  the  United  States,  are  hereby  approved  and 
confirmed,  and  the  same  shall  be  legal  and  valid,  in  all  re- 
spects as  if  done  under  the  express  authority  of  Congress  pre- 
viously conferred. 

"Sec.  S.  And  be  it  further  enacted,  that  in  case  at  any  time 
hereafter,  during  the  recess  of  Congress,  similar  exigencies 
shall  arise,  by  reason  of  any  combination  to  resist  the  execu- 
tion of  the  laws  or  to  destroy  the  government  of  the  United 
States,  the  President  shall  have  authority  to  call  into  the 
service  of  the  United  States  such  military  and  naval  forces  as 


«The  Washington  correspondent  of  the  New  York  Herald,  in  his  letter  of 
July  4,  which  was  published  in  the  issue  of  July  6 — ^no  paper  being  published 
July  5 — gave  all  six  in  extenso.  A  comparison  of  his  texts,  so  published,  with 
those  considerable  portions  of  the  bills  which  appear  in  the  Congressionat 
Glohe,  during  the  course  of  the  debates  upon  them,  proves  the  substantial  ac- 
curacy of   the  Herald  correspondent   on    this   occasion. 


[12] 


SELLER Y — Lincoln's  suspension  of  habeas  cokpus.     225 

he  may  deem  necessary  to  suppress  insurrection  and  rebellion 
and  enforce  obedience  to  the  laws  of  the  United  States."^ 

July  5  passed  without  any  sign  from  Senator  Wilson.  It 
was  the  day  on  which  the  President's  message  was  read.  The 
following  morning  he  introduced  his  six  bills.  The  first  bill, 
however,  had  in  the  interval  become  a  joint  resolution  (S.  No. 
1).  The  six  measures  were  read  twice  by  title  and  ordered  to 
be  printed."®     The  joint  resolution  was  in  the  following  words: 

"Joint  resolution  (S.  No.  1)  to  approve  and  confirm  certain 
acts  of  the  President  of  the  United  States,  for  suppressing  in- 
surrection and  rebellion." 

"Whereas,  since  the  adjournment  of  Congress,  on  the  4th 
day  of  March  last,  a  formidable  insurrection  in  certain  States 
of  this  Union  has  arrayed  itself  in  armed  hostility  to  the  gov- 
ernment of  the  United,  States,  constitutionally  administered; 
and  whereas  the  President  of  the  United  States  did,  under  the 
extraordinary  exigencies  thus  presented,  exercise  certain  pow- 
ers and  adopt  certain  measures  for  the  preservation  of  this 
Government — that  is  to  say:  First,  He  did,  on  the  15th  day 
of  April  last,  issue  his  proclamation  calling  upon  the  several 
States  for  seventy-five  thousand  men  to  suppress  such  insur- 
rectionary combinations,  and  to  cause  the  laws  to  be  faithfully 
executed.  Secondly.  He  did,  on  the  19th  day  of  April  last, 
issue  a  proclamation  setting  on  foot  a  blockade  of  the  ports 
within  the  States  of  South  Carolina,  Georgia,  Alabama, 
Florida,  Mississippi,  Louisiana  and  Texas.  Thirdly.  He  did, 
on  the  27th  day  of  April  last,  issue  a  proclamation  establishing 
a  blockade  of  the  ports  within  the  States  of  Virginia  and  North 
Carolina.  Fourthly,  He  did,  by  order  of  the  2Tth  day  of 
April  last,  addressed  to  the  Commanding  General  of  the  Army 
of  the  United  States,  authorize  that  officer  to  suspend  the  writ 
of  habeas  corpus  at  any  point  on  or  in  the  vicinity  of  any  mili- 
tary line  between  the  city  of  Philadelphia  and  the  city  of 
Washington.  Fifthly.  He  did,  on  the  3d  day  of  May  last, 
issue  a  proclamation  calling  into  the  service  of  the  United 
States  forty-two  thousand  and  thirty-four  volunteers,  increas- 


•N.   Y.   Herald,  July   6.   18G1.     See  also   Philadelphia  Enquirer,  July   8,    1861. 
tiee  also  preceding  footnote. 

*Globe,  1st  S.  i{7th  Cong.  p.   16. 
Ubid. 


[13] 


226  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

ing  the  regular  Army  by  the  addition  of  twenty-two  thousand 
seven  hundred  and  fourteen  men,  and  the  Navy  by  an  addi- 
tion of  eighteen  thousand  seamen.  Sixthly.  He  did,  on  the 
10th  day  of  May  last,  issue  a  proclamation  authorizing  the 
commander  of  the  forces  of  the  United  States  on  the  coast  of 
Florida  to  suspend  the  writ  of  habeas  corpus,  if  necessary.  All 
of  which  proclamations  and  orders  have  been  submitted  to 
this  Congress.     Now,  therefore, 

"Be  it  resolved  .  .  .  That  all  of  the  extraordinary  acts, 
proclamations,  and  orders,  hereinbefore  mentioned,  be,  and  the 
same  are  hereby,  approved  and  declared  to  be  in  all  respects 
legal  and  valid,  to  the  same  intent,  and  with  the  same  effect 
as  if  they  had  been  issued  and  done  under  the  previous  ex- 
press authority  and  direction  of  the  Congress  of  the  United 
States."^ 

The  six  measures  were  the  same  day  ordered  to  be  printed, 
and  after  the  standing  committees  were  appointed  they  were 
referred,  on  Wilson's  motion,  to  the  Committee  on  Military 
Affairs  and  the  i\Iilitia,  of  which  he  had  been  re-appointed 
chairman.^  Ji-'b'  8.  Monday,  at  the  very  brief  open  session, 
Wilson,  for  the  committee,  reported  the  joint  resolution  with- 
out amendment  and  recommended  its  passage.  He  asked  for 
its  present  consideration  but  Polk's  objection,  under  the 
rules,  made  that  impossible.^" 

The  joint  resolution  was  the  response  proposed  by  Wilson 
to  that  portion  of  the  President's  message,  above  quoted,  in 
which  he  submitted  certain  specified  measures  to  the  better 
judgment  of  Congress.  The  message,  or  the  information  con- 
tained in  the  message,  caused  Wilson  unobtrusively  to  trans- 
form his  "Bill  No.  1"  into  the  joint  resolution.^^     He  did  not 


'aiobc,  1st  S.  3Ttli  Cong.  1).  40. 

"Ibid.  pp.  17,  1!1.  The  members  of  the  (.'ommittee  were  'Wilson,  chairman, 
King,  Balier,  Lane  of  Indiana  and  Lane  of  Kansas.  Republicans,  and  Rice  and 
Latham,  War  Democrats.  Ibid.,  p.  17 ;  Tribune  Almanae^  1861,  1862.  For 
Rice's  profession  of  faith  see  Olobe,  1st  S.  37th  Cong.  p.  242 ;  and  for  his 
idtntiflcation  of  his  position  with  that  of  Latham,  ibid.  p.   217. 

'"Ibid.  p.  21. 

''These  conclusions  rest  upon  tliis  foundation:  The  message  was  not  made 
public  until  July  .5 ;  there  is  a  close  correspondence — amounting  to  practical 
identity — between  the  recital  of  the  extraordinary  measures  in  the  message 
and  in  the  joint  resolution ;  above  all,  the  resolution  says :  "All  of  which 
proclamations  and  orders  have  been  submitted  to  this  Congress." 


[14] 


'-»^' II «  «  »  ^  ^  <  J » 


n  »i  »i  >■  t  »■  la 


SELLEEY LINCOLN^S    SUSPENSION    OF    HABEAS    CORPUS.       227 

withdraw  the  "bill;"  he  did  not  ask  leave  to  introduce  the 
resolution ;  he  obtained  leave  to  introduce  the  "bill"  and  intro- 
duced the  resolution  "in  pursuance  of  previous  notice. "^^ 

The  most  striking  change  in  the  resolution  is  the  inclusion 
of  the  suspensions  of  the  privilege  of  the  writ  of  habeas  corpus 
among  the  extraordinary  measures.  The  absence  of  these 
from  the  "bill"  may  mean  that  Wilson  did  not  believe  that 
the  President  transcended  his  constitutional  powers  in  sus- 
pending the  habeas  corpus  or  that  Wilson  did  not  consider  it 
within  his  province,  as  prospective  chairman  of  the  Committee 
on  Military  Affairs  and  the  Militia,  to  include  them  in  a  mili- 
tary bill.  If  the  latter  is  the  correct  conclusion,  then  the 
President's  message  would  seem  to  have  caused  Wilson  to 
change  his  opinion. 

A  comparison  of  the  enacting  clause  of  the  "bill"  with  the 
corresponding  clause  of  the  resolution  reveals  another  import- 
ant alteration.  The  language  of  the  "bill" — "Be  it  enacted  .  .  . 
That  all  the  acts  and  proceedings  of  the  President  .  .  .  are 
hereby  approved  and  confirmed,  and  the  same  shall  be  le- 
gal and  valid,  in  all  respects  as  if  done  under  the  ex- 
press authority  of  Congress  previously  conferred" — is  clear. 
Manifestly  this  means  the  legalisation  of  that  which  might 
otherwise  be  held  to  lack  a  degree  of  legality.  The  words  of 
the  resolution — "Be  it  resolved  .  .  .  That  all  the  extra- 
ordinary acts,  proclamations  and  orders,  hereinbefore  men- 
tioned, be  and  the  same  are  hereby,  approved  and  declared  to 
be  in  all  respects  legal  and  valid,  to  the  same  intent,  and  with 
the  same  effect,  as  if  they  had  been  issued  and  done  under  the 
previous  express  authority  and  direction  of  the  Congress  of 
the  United  States" — are  not  clear  but  equivocal.  If  the  reso- 
lution had  ended  with  the  word  valid,  it  would  have  been  a 
declaration  of  the  President's  constitutional  right  to  do  what 
he  had  done;  what  follows  the  word  valid  makes  the  whole 
statement  obscure  and  suggests  that  the  resolution  was  meant 
to  legalize  the  illegal.  It  would  obviate  a  dilemma  if  the 
resolution   might   be   considered   as   declaratory   of   the   legality 


^-  There  is   no   hint   in  any   of   ttie  debates  that  the  resolution   was  a   change- 
ling. 


[15] 


228  BULLETIN   OF    THE    UNIVEESITY   OF    WISCONSIN. 

of  extraordinary  acts  one,  two  and  three,  and  as  intended  to 
legalize  acts  four,  five  and  six.  But  this  is  not  possible ;  the 
section  commencing  "Be  it  resolved"  must  be  construed  as  a 
whole,  one  way  or  the  other. 

The  obscurity  of  this  portion  of  the  resolution  was  fully 
revealed  in  the  debates  upon  it.  Of  the  senators  who  ex- 
pressed themselves  clearly  on  the  question,  four  were  of  the 
opinion  that  it  was  a  declaration  of  legality.  John  Sherman's 
statement  may  be  given  as  typical :  "I  approve  the  action  of 
the  President.  I  believe  the  President  did  right.  He  did 
precisely  what  I  would  have  done  if  I  had  been  in  his  place — 
no  more,  no  less  .  .  .  but  I  cannot  here,  in  my  place, 
under  oath,  declare  that  it  was  strictly  legal,  and  in  conso- 
nance with  the  provisions  of  the  Constitution.  I  shall  there- 
fore be  compelled  to  vote  against  the  resolution."'" 

Twelve  of  the  senators,  including  Wilson,  expressed  the 
view  that  the  clause  meant  legalization  of  the  acts  of  the 
President.  Howe  stated  the  view  explicitly  when  he  said : 
"The  resolution  does  not  affirm  that  they  were  legal ;  that 
they  were  sanctioned  by  the  legislative  power  of  the  United 
States;  but  it  declares  that  they  shall  be"  as  legal  and  valid 
as  if  they  had  had  the  previous  express  authority  and  direc- 
tion of  the  Congress  of  the  United  States. 

"I  want  to  say  further,  Mr.  President,  that  there  may  be 
no  sort  of  mistake  about  the  position  I  occupy,  that  my  ad- 
miration of  them  is  proportioned  exactly,  mathematically,  to 
the  extent  that  they  were  violations  of  the  existing  law."^' 
Wilson,  in  discussing  the  resolution,  which  he  said  was  "plain 
and  simple  to  the  comprehension  of  every  man,"  asked  that 
''the  vote  shall  be  taken  on  merely  legalizing  the  action  of  the 
past."'*' 

The   ambiguity   of   the    final   clause   of   the   resolution    is   es- 


^" Globe,  1st  S.  87th  Cong.  p.  393.  The  three  others  were  Bayard  (ibid. 
Appendix,  p.  14),  ("arlile  (i(»>/.  p.  339)  and  Lane  of  Indiana    (ihid.  pp.  142-143). 

"The  resohitioa   does  not   say    "shall  be." 

'^Olobe,  1st  S.  37th  Cong.  p.  393. 

"Ibift.  pp.  41,  42.  The  ten  other  senators  who  held  this  interpretation 
were:  Breckenridge  (ibid.  p.  142.),  Clark  (ibid.  p.  41),  Fessendea  (Ibid  p.  46), 
Hale  {ibid.  p.  41),  King  (ibid.  p.  46),  Morrill  (ibid.  p.  392),  Pearce  (ibid.  p. 
335),  Polk  (ibid.  p.  47),  Powell   (ibid.  p.  68)   and  Trumbull    (ibid.  p.  392).     In 


[16] 


SELLEKY — Lincoln's  suspension  of  habeas  coepus.     229 

tablished  out  of  the  mouths  of  United  States  senators.^'  It  is 
difficult  to  avoid  connecting  the  ambiguity  with  the  presence 
in  the  joint  resolution  of  the  sections  reciting  the  President's 
suspension  of  the  habeas  corpus.  The  ambiguity  and  the 
suspension  entered  the  resolution  together ;  they  may  be  said 
to  have  left  it  together.  For  when,  toward  the  close  of  the 
extra  session,  the  fate  of  the  resolution  was  sealed  and  Wil- 
son re-introduced  his  old  "Bill  No.  1"  in  a  new  form,  its  en- 
acting clause  was  again  unequivocal.  As  has  been  shown, 
the  ambiguity  served  in  a  way  to  support  or  leave  standing 
the  President's  claim  constitutionally  to  suspend  the  privi- 
lege of  the  writ  of  habeas  corpus.  In  view  of  subsequent 
cases  of  a  similar  nature,  it  is  difficult  to  avoid  the  suspicion 
that  the    ambiguity  was  designed  for  this  very  purpose. 

The  prospects  of  the  joint  resolution  were  good.  It  was 
the  first  measure  presented  to  the  Senate.  It  was  given  pre- 
cedence over  the  five  military  bills  which  were  the  basis  of 
the  work  of  the  Senate  for  the  session.  It  was  introduced  by 
the  leading  Republican,  the  chairman  of  the  leading  commit- 
tee. It  was  reported  favorably  by  this  committee,  July  8, 
without  amendment  and  with  only  one  mildly  dissenting 
voice.^^  July  10 — the  earliest  possible  day^'' — the  resolution 
came  before  the  Senate  as  the  first  business  on  the  calendar. 
The  speeches  of  that  day  showed  a  determination  on  the  part 
of  Wilson  and  his  supporters  to  hurry  the  resolution  through. 


most  cases  several  references  might  be  given,  but  these  are  the  clearest.  Trum- 
bull wavered  somewhat  in  expressing  himself  on  the  point,  but  the  context, 
p.  392,  justifies  his  inclusion  here. 

Eight  senators  construed  the  resolution  as  a  declaration  of  commendation — 
waiving,  to  all  intents,  the  question  whether  it  was  meant  to  legalize  or  as- 
sert legality.  These  were:  Browning  {iUd.  p.  188),  Johnson  (ibid.  pp. 
289-290),  Kennedy  (ibid.  p.  42).  Latham  (ibid.  Appendix,  p.  19),  McDougall 
(ibid.  p.  340),  Saulsbury   (ibid.  p.  442)   and  Thomson   (ibid.  p.  395). 

"August  6,  1861,  the  last  day  of  the  session,  when  the  resolution  had  no 
chance  of  passing,  and  when  it  was  no  longer  possible  to  amend  it,  Wilson  of- 
fered to  change  the  last  clause  to  read,  "Be,  and  the  same  are  hereby,  ap- 
proved, and  in  all  respects  legalized  and  made  valid,"  adding  significantly,  "I 
believe  this  expresses  the  idea  more  fully  and  more  completely.  Globe,  1st  S. 
37th   Cong.    p.   4.52  and   passim. 

^^  Latham's.      Ibid.    p.    41. 

"The  resolution  had  to  lie  over  from  July  8  to  July  9,  under  the  rules. 
July  9  was  devoted  to  eulogies  of  the  late  Senator  Douglas. 

2  [IT] 


230  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

Despatch  breathes  through  their  words  as  reported  in  the 
Globe,  and  the  imminence  of  the  passage  of  the  resolution  was 
recognized  on  all  sides. -'^  The  resolution  was  amended  by 
the  addition  of  the  words,  ''provided  that  nothing  herein  con- 
tained shall  be  construed  as  authorizing  a  permanent  increase  of 
the  Armv  or  Navv,"  Latham's  motion  to  strike  out  the  sec- 
tions  relating  to  habeas  corpus  was  rejected,  and  the  resolution 
was  read  a  third  time  and  placed  upon  its  passage. ^^  At  this 
point  Polk  intervened  with  a  demand  for  the  yeas  and  nays,  and 
these  granted,  he  made  a  speech  against  the  resolution.--  After 
talking  at  considerable  length  he  expressed  a  wish  to  con- 
clude his  speech  the  following  day,  and  in  this  was  supported 
by  Powell,  but  the  Senate  refused  to  adjourn.  Polk  therefore 
resumed  the  floor,  whereupon  Wilson,  after  consultation  with 
one  or  two  senators,  announced  his  will;  "I  propose  to  let 
this  resolution  go  over  until  to-morrow  morning,  with  the 
understanding  that  we  shall  now  take  up  the  volunteer  bill." 
This  proposition  was  at  once  agreed  to."^ 

July  11  the  resolution  almost  monopolized  the  attention  of 
the  Senate.  Polk  concluded  his  speech,  at  length,  and  Powell 
continued  in  the  same  strain,  at  greater  length.-*  When  the 
latter  had  ended  Breckinridge  and  Bayard  indicated  their  in- 
tention to  continue  the  debate  for  the  opposition,  and  again 
Wilson  gave  the  word,  with  apparently  increasing  willing- 
ness: "I  propose,  if  the  Senators  desire  to  speak  on  this 
question — and   I   suppose  they   do — to   let  the   pending   resolu- 


"" Kennedy,  Unionist,  opened  his  remarks  by  saying:  "Mr.  President,  I  de- 
sire to  say  one  word  before  the  vote  is  taljen  on  this  extraordinary  measure." 
Globe,  1st  S.  iJTth  Cong.  p.  42.  King,  Republican,  said,  apropos  of  an  amend- 
ment: "I  offered  this  proposition  without  any  intention  to  delay  the  Senate 
five  minutes  .  .  .  However  I  will  not  continue  this  debate  so  as  to  pro- 
tract the  time;  I  prefer  voting."  Ibid.  pp.  42-4.S.  Wilson,  in  opposing  Polk's 
request  for  one  day's  postponement,  remarked :  "I  hope,  therefore,  that  the 
Senator  will  not  ask  us  to  lay  this  resolution  aside  at  this  time,  and  I  hope 
that  the  Senate  will  continue  the  consideration  of  it  until  it  Is  ready  to  vote 
upon  it."  Jbid.  p.  41.  And  see  other  similar  expressions,  ibid.  pp.  41-43. 
Lord  Lyons,  the  British  ambassador,  wrote  Lord  Russell,  July  14 :  "It  is 
thought  that  the  Resolution  will  pass  both  Houses  without  any  material  alter- 
ation." North  America  No.  1  [British  Blue  Book],  presented  to  Parliament 
1862,  p.  57. 

"Ulobe,  1st  S.  37th  Cong.  p.  47. 

~'Ibid.   pp.   47-49. 

"/bid.   pp.   49-50. 

^"Qlobe,   1st   S.   37th   Cong.   p.    71. 

[18] 


SELLERY — Lincoln's  suspension  of  habeas  coepus.     231 

tion  go  over  until  to-morrow,  and  we  can  go  on  to-day  with 
another  bill  containing  practical  measures."  The  Senate 
agreed.-* 

July  12  passed  without  a  reference  to  the  resolution.  July 
13  no  word  was  spoken  concerning  it.  July  15,  Monday,  it 
was  Breckinridge,  the  leading  Democrat,  and  not  Wilson, 
the  Republican,  who  broke  the  silence  with  a  request  to  have 
the  resolution  taken  up  and  made  the  special  order  for  the 
next  day."''  Thereafter  the  discussion  of  the  resolution  con- 
tinued, but  in  a  desultory  fashion,  long  speeches  being  made 
from  time  to  time,  without  haste  or  coiupression."^  It  was 
obvious  that  the  Republicans  were,  by  this  time,  in  no  hurry 
to  pass  the  resolution. 

July  17,  1861,  Trumbull  furnished  fresh  fuel  for  the  debate 
by  introducing  a  bill  authorizing  the  suspension  of  the  habeas 
corpus.  Some  such  measure  he  regarded  as  a  necessary  com- 
plement to  the  resolution.  "I  am  not  disposed,''  he  said,  a 
few  days  later,  "to  say  that  the  Administration  has  unlimited 
power  and  can  do  what  it  pleases  after  Congress  meets.  I 
am  willing  to  excuse  it  .  .  .  and  to  sustain  it  .  .  . 
but  if  you  propose  to  pass  a  resolution  approving  the  exercise 
of  powers  for  which  you  may  be  unable  to  find  in  strict  law 
the  warrant  and  then  refuse  to  grant  by  law  the  authority  to 
do  what  is  necessary  to  be  done,  it  seems  to  me  it  will  be  a 
very  strange  proceeding.  I  think  we  had  better  let  this  reso- 
lution lie  until  we  dispose  of  the  bill.     .     .     .     "-'* 

Trumbull's  bill  was  referred  to  the  Judiciary  Committee,  of 
which  he  was  chairman,  and  was  ordered  to  be  printed.^^ 
July  26  the   committee   reported   it  with   an   amendment  in   the 


'^^  Globe.    1st   S.    37th   Cong.    p.    71. 

■'"Ibid.   p.    127. 

^'  Johnson,  Tennessee,  got  successive  postponements  from  .Tiily  20  to  July  27, 
and  during  the  interval  the  debate  was  at  a  standstill.  Ibid.  pp.  217,  220, 
237,  270.  July  26  he  said:  "If  the  Senate  is  anxious  to  have  action  upon  It 
[the  resolution]  at  once,  I  have  no  objection  to  their  taking  a  vote  upon  it 
now,  and  what  little  1  have  to  say  I  can  say  upon  some  other  proposition."' 
The  Olobe  at  this  point  reads :  "Several  Senators.  We  have  no  objection  to 
its  going  over."     Jbid.  p.  276. 

■■"Ibid.   p.  392. 

■^Ibid.  p.  1C7. 


[19] 


232  BULLETIN   OF    THE    UNIVERSITY    OF    WISCONSIN. 

form  of  a  substitute  bill  (S.  No.  33).^°  This  bill  authorized 
the  Commanding  General  and  the  commanders  of  military 
departments  and  districts  "within  their  several  commands 
and  within  States,  Territories  or  districts  of  country  which 
may  have  been,  or  shall  hereafter  be  declared  by  the  President 
of  the  United  States  to  be  in  a  state  of  insurrection,  or  in 
actual  rebellion"  to  declare  by  proclamation  such  territory  or 
any  part  thereof  "in  a  state  of  insurrection  and  war."  Section 
4  suspended  the  operation  of  the  writ  of  habeas  corpus  within 
such  territory :  "That  from  and  after  the  publication  of  the 
proclamation  heretofore  mentioned,  the  operation  of  the  writ 
of  habeas  corpus  shall  be  so  far  suspended  that  no  military  of- 
ficer shall  be  compelled  to  return  the  body  of  any  person  or 
persons  detained  by  him  by  military  authority ;  but  upon  the 
certificate,  under  oath,  by  the  officer  having  charge  of  any  one 
so  detained,  that  such  person  is  detained  by  him  as  a  prisoner 
under  military  authority,  further  proceedings,  under  the  writ 
of  habeas  corpus,  shall  be  dismissed  by  the  judge  or  court  hav- 
ing issued  the  said  writ."  Section  8  empowered  the  military 
commander  over  such  territory  to  administer  a  specified  oath 
of  allegiance  to  persons  suspected  of  disloyalty.  Refusal  to 
take  such  oath  should  involve  the  detention  of  the  suspected 
persons  as  prisoners  "until  the  restoration  of  quiet  and  peace 
in  the  locality  where  such  arrests"  had  been  made,  and  any- 
one taking  the  oath  who  should  afterwards  be  found  in  arms 
against  the  Government  or  aiding  and  abetting  its  enemies 
should  be  liable  to  the  punishment  of  death  at  the  hands  of  a 
court-martial.  Section  10  directed  the  Commanding  General 
or  departmental  or  district  commander  to  recall,  publicly,  the 
declaration  of  the  state  of  insurrection  and  war,  whenever  the 
necessity  therefor  had  ceased.  The  other  sections  made  pro- 
vision for  the  government  of  such  territory  and  for  the  con- 
duct of  the  army  therein.^^ 

This  bill  was  manifestly  of  much  potential  import.     It  would 
apply   to   troubled  Union   territory,   and   to   territory   recon- 


^"Olohe,  1st.  S.  37th  Cong.,  p.  275. 

^  "A    bill    to    suppress    insurrection    and    sedition    and    for    other    purposes. 
Ibid.  pp.  336-337. 


[20] 


SELLEKY LINCOLN^S    SUSPENSION    OF    HABEAS    CORPUS.       233 

quered  from  the  Confederates.  It  was  the  latter  aspect  of  the 
measure  which  secured  most  attention  and  most  favor  for  the 
bill  in  the  Senate.^-  But  it  was  also  recognized  that  the  bill 
would  be  applicable  to  sections  of  the  Union  untouched  by 
war.  Breckinridge,  whose  zeal  in  opposition  was  marked, 
declared  it  a  bill  "which  abolishes,  in  the  discretion  of  the 
Executive  and  of  his  military  subordinates,  not  only  the  right 
to  the  writ  of  habeas  corpus  and  the  right  of  trial  by  jury  be- 
fore civil  tribunals  for  crimes  committed  by  citizens,  but  it 
absolutely  abolishes,  at  his  discretion,  all  State  governments, 
all  the  judicial,  executive,  and  legislative  functions  of  State 
governments,  and  authorizes  subordinate  military  command- 
ers to  substitute  rules  and  regulations  at  their  will  for  the 
laws  of  the  different  Commonwealths  of  this  Union,  and  prac- 
tically would  operate  as  hardly  upon  the  non-seceded  as  upon 
the  seceded  States. "^^  Trumbull,  in  immediate  reply,  said: 
"The  Senator  from  Kentucky  thinks  that  this  bill  allows  the 
military  authorities  great  power  to  arrest  men.  Are  they  not 
arrested  now?  Are  not  men  arrested  in  the  city  of  Baltimore 
and  already  in  confinement?  .  .  .  Are  they  not  arrested 
in  my  State  ?"3* 

The  bill,  coming  up  for  discussion  for  the  first  time  July  30, 
had  little  chance  in  the  Senate.  It  was  imperfect.  Trumbull 
admitted  the  fact,  although  he  asserted  that  it  was  the  duty 
of  the  Senate  to  perfect  the  bill,  inasmuch  as  the  Legislature 
should  enable  the  military  authorities  to  do  lawfully  that 
which  was  needful  to  the  suppression  of  the  rebellion. ^^ 
Others  said  that  the  bill  was  too  important  to  be  rushed 
through  hurriedly.^®  The  members  of  the  Judiciary  Commit- 
tee were  of  every  shade  of  opinion,^"  as  were  the  senators  as 
a  whole.     On  a  test  vote,  taken  August  2,  Bill  No.  33  had  to 


^'^  Globe,  1st   S.   37th   Cong.   pp.   337-393,   especially   372,   373. 

^Ilid.   p.    372. 

'*lbid.  p.  373. 

3= /bid. 

"Harris,  for  example.  He  summed  up  by  alleging  that  the  temper  of  the 
Senate  and  the  temperature  of  the  weather  were  against  it.     Ibid.  p.  372. 

"The  members  were  Trumbull,  Foster,  Ten  Eyck,  Cowan,  Harris,  Bayard, 
and  Powell.     Senate  Journal,  1st  S.  37th  Cong.  p.  21. 


[21] 


234:  BULLETIN"   OF    THE    UNIVERSITY    OF    WISCONSIN". 

give  way  to  the  joint  resolution,  28  votes  to  11.     It  was   ob- 
vious that  the  bill  was  disposed  of  for  the  session."* 

It  was  soon  made  manifest  that  the  victory  of  the  joint 
resolution  was  an  empty  one,  and  that  its  chance  of  success 
was  also  gone.  Immediately  after  the  defeat  of  the  bill  Doo- 
little  moved  to  refer  the  resolution  to  the  Judiciary  Commit- 
tee."** The  Democrats,  who  had  for  days  been  exhibiting" 
marked  solicitude  for  the  welfare  of  the  resolution,  recognized 
the  significance  of  Doolittle's  motion  and  Breckinridge 
taunted  the  Republicans  with  wishing  to  consign  the  resolu- 
tion to  the  dungeons  of  a  committee  room.***  The  Senate  re- 
jected Doolittle's  motion  by  a  vote  of  23  to  17.  Analysis  of 
the  vote  shows  that  it  was  the  Democrats  who  kept  the  reso- 
lution before  the  Senate*^  They  had  divined  the  divided 
counsels  of  the  majority.  The  resolution  was  debated  further 
the  same  day  but  was  presently  pushed  aside  for  other  busi- 
ness and  finally  on  Wilson's  motion  the  Senate  went  into  ex- 
ecutive session. ■*- 

Monday,  August  5.''^  Wilson  introduced  a  bill  to  legalize  a 
portion  of  the  measures  enumerated  in  the  joint  resolution. 
This  is  obviously  the  first  part  of  "Bill  No.  1"  in  a  new  garb. 
The  bill  was  as  follows :  "Be  if  enacted,  &e..  That  all  the 
acts,  proclamations,  and  orders  of  the  President  of  the  United 
States,  after  the  4th  of  March.  1861.  respecting  the  Army  and 
Navy  of  the  United  States,  and  calling  out,  or  relating  to  the 
militia  or  volunteers  from  the  States,  are  hereby  approved, 
and  in  all  respects  legalized  and  made  valid,  to  the  same  in- 
tent and  with  the  same  efifect  as  if  they  had  been  [issued  and] 
done   under   the    previous    express    authority    and    direction    of 


^^Glohe,  1st  S.  37th  Cong.  p.  393.  The  yeas  and  nays  show  that  not  one  Demo- 
crat and  that  only  two  members  of  the  Judiciary  Committee,  stood  by  Trum- 
bull on  this  vote.     Ihid. 

*"For  this  and  other  jibes,  see  ihhl.  pp.  392,   393,    452. 

*'  Only  two  of  the  17  were  Democrats  and  these  were  War  Democrats ;  eight 
of  the  23  were  out-and-out  Democrats,  one  was  a  War  Democrat  and  two  were 
Unionists.     Ibid.   p.    393. 

*-lbi(t.  p.  406. 

**IS'o  mention  of  the  joint  resolution,  August  3. 


[22] 


SELLEEY — Lincoln's  suspexsiox  of  habeas  corpus.     235 

the  Congress  of  the  United  States."^*  Considerations  of  Sen- 
ate procedure  made  it  advisable  to  tack  this  measure  to  a 
bill  increasing  the  pay  of  the  troops,  and  the  amended  bill 
passed  the  Senate  by  a  vote  of  37  to  5.*"  In  the  House,  a 
motion  to  strike  out  this  amendment  failed  by  a  vote  of  19 
to  74>«  The  bill  (S.  No.  72)  approved  by  the  President, 
August  6,  contains  this  legalizing  section  in  the  words  in 
which  it  was  presented  by  Wilson.*^ 

The  legalizing  section  was  framed,  it  Avas  said,  to  meet  the 
technical  objections  of  three-year  volunteers  who  saw  a  loop- 
hole of  escape  from  the  army  in  the  circumstance  that  the 
President  had  exceeded  his  authority  in  calling  them  into  the 
service  of  the  United  States/^  But  it  will  be  seen  that  the 
phraseology  of  the  section  was  such  that  it  might  be  used  to 
cover  more  than  the  special  difficulty.  It  could  and  did  serve 
as  the  basis  for  general  assertions  that  Congress  approved  the 
extraordinary  acts  of  the  President.  "Both  Houses,''  said  the 
New  York  Daily  Tribune  of  August  6,  "yesterday  passed  re- 
solves formally  approving  the  acts  of  the  President  for  the 
salvation  of  the  Republic.  Good."  In  a  similar  vein  Senator 
Grimes  wrote  to  an  Iowa  correspondent  who  was  alive  to  the 
importance  of  the  point  as  a  campaign  issue :  "This  section 
ratifies  and  confirms,  to  the  fullest  possible  extent,  all  the  acts 
of  the  President  that  needed  or  that  were  susceptible  of  ratifi- 
cation. .  .  So  far  as  I  am  informed,  I  believe  it  was  all 
the  confirmation  of  the  acts  of  the  President  that  he  either  ex- 
pected or  desired."*^ 

The  passage  of  this  legalizing  amendment  was  on  the  face 
of  things  an  act  of  salvage  upon  the  wrecked  joint  resolu- 


**Globe,  1st  S.  37th  Cong.  p.  442. 

*^Jbia.  pp.  442-443. 

*^lbid.  p.  449. 

*'See  section  3  of  Chapter  LXIII  of  the  Acts  of  the  37th  Congress.  The 
amended  bill  (S.  No.  69)  after  passing  both  Houses  was  laid  upon  the  Senate's 
table  and  a  new  bill  (S.  No.  72)  was  substituted,  amended  and  passed  in  both 
Houses  and  finally  received  the  President's  signature. 

*'See  Fessenden's  explanation,  Globe,  1st  S.  37th  Cong.  p.  442. 

"Salter's  Grimes,  pp.  150-152.  Letter  referred  to  in  Ehodes,  vol.  Ill  p. 
439. 


[23] 


236  BULLETIN   OF    THE    UNIVEKSITY   OF    WISCOXSIX. 

tion.^"  Nevertheless  Wilson  announced  shortly  after  the 
opening  of  the  Senate.  August  6,  that  he  proposed  to  take  up 
the  joint  resolution  and  wanted  it  brought  to  a  vote."  What- 
ever his  motives,  whatever  his  expectations  of  success,  he  did, 
on  the  last  day  of  the  session,  make  a  gallant  effort  to  get  a 
final  vote  upon  it.  He  offered  to  remove  all  ambiguity  from 
the  enacting  clause  f-  he  offered  to  modify  the  section  on  the 
blockades.  It  was  all  in  vain.  The  effort  served  merely  to 
enable  leading  Republicans  to  exhibit  a  belated  and  suspicious 
enthusiasm  for  a  measure  which  had  no  chance  of  passing  at 
the  eleventh  hour,  to  show  the  confidence  of  the  Democrats 
that  the  Republicans  would  not  allow  it  to  come  to  a  vote, 
and  to  give  each  party  an  opportunity  to  throw  upon  the 
other  the  responsibility  for  its  failure.^^  There  was  a  touch 
of  poetic  vengeance  in  the  final  supersession  of  the  resolution, 
for  it  was  Trumbull,  the  virtual  author  of  Bill  No.  33,  who 
stood  in  the  way — however  needlessly — at  the  very  end,  and 
refused  to  allow  the  resolution  to  come  to  a  vote.°* 

The  responsibility  for  the  failure  of  the  resolution  to  pass 
the  Senate  must  be  laid  at  the  door  of  the  Republican  ma- 
jority. If  they  had  continued  of  the  same  mind  they  were 
July  10,  the  ambiguity  of  the  enacting  clause  would  not  have 
been  a  stumbling  block.^^     The  ambiguity  was  pointed  out 


"^"Sherman  said.  August  .5 :  "I  am  very  glad  this  proposition  has  come  up 
In  this  way,  and  I  take  it  as  a  matter  of  course,  that  if  this  bill  is  passed,  the 
other  joint  resolution  will  not  be  called  up."  Qlote,  1st  S.  37th  Cong.  p.  442. 
See  also  Saulsbury's  statement,  ihid.  Certainly,  if  the  joint  resolution  meant 
legalization  and  were  to  become  law,  this  legalizing  amendment  would  be 
supererogatory. 

^^Ihid.  p.  451.     And  see  his  response  to  Breclsinridge's  jibe,  tbtd.  p.   442. 

^2  See  above,   p.   229,  footnote. 

^^  Globe,  1st  S.  37th  Cong.  pp.  451-453. 

^Jbid.   p.   453. 

"  The  ambiguity  of  the  enacting  clause  served  as  a  good  excuse  for  senators 
who  felt  it  necessary,  at  a  later  time,  to  justify  the  failure  of  the  resolution. 
Senator  Grimes  wrote,  in  his  letter  of  September  16,  1861 :  "There  may  be 
some  who  honestly  believe  that  the  Senate  refused  to  support  the  President 
because  of  their  failure  to  pass  certain  resolutions  presented  by  Mr.  Wilson, 
sf  Massachusetts.  The  facts  in  regard  to  those  resolutions  were  these:  They 
were  introduced  at  an  early  day  in  the  session,  and  were  put  aside  from  day 
to  day  to  make  room  for  what  was  considered  more  important  business,  until 
just  at  the  close  of  the  session,  when  they  had  reached  that  stage  in  parlia- 
mentary proceedings  when  it  was  impossible  to  amend  them  without  parlia- 
mentary consent,  and  that  could  not  be  obtained.  The  objection  urged  by  some 
gentlemen  against  them  as  they  stood  without  amendment  was,  that  they  were 

[24] 


SELLEKY — Lincoln's  suspension  of  habeas  cokpus.     23T 

at  an  early  day,  and  yet  no  motion  to  remove  it  was  ever 
made  in  the  Senate  until  the  last  day  of  the  session,  when  the 
rules  of  the  Senate  required  unanimous  consent.  That  of  it- 
self, considering  that  the  resolution  was  in  the  control  of  the 
majority  for  \veeks,  demonstrates  almost  conclusively  that  the 
Republicans  in  the  Senate  had  lost  interest  either  in  legaliz- 
ing, or  recognizing  the  legality  of,  the  President's  suspension, 
of  the  habeas  corpus. 

The  change  of  attitude  toward  the  resolution  on  the  part 
of  the  supporters  of  the  Administration  took  place  immedi- 
ately after  July  10.  It  came  so  swiftly  that  it  is  difficult  to 
escape  the  impression  that  the  volte  face  was  due  to  sudden 
and  powerful  pressure.  In  the  absence  of  any  direct  evidence 
of  the  emplo3'ment  of  this  pressure  it  is  safe  to  fall  back  upon 
the  general  and  obvious  conclusion  that  the  Republican  sen- 
ators and  their  allies  while  as  a  whole  approving  of  the  sus- 
pension by  the  President  were  unwilling  to  place  themselves 


improperly  drawn  .  .  .  and  declared  that  the  acts  of  the  President 
were  legal  and  valid  when  performed,  whereas  4s  they  Insisted,  they  ought 
to  have  declared  that  those  acts  should  be  legal  and  valid  as  though  done 
under    the   sanction   of    law. 

"It  was  simply  on  account  of  this  objection  in  the  minds  of  a  few  Senators 
that  the  resolutions  which  it  was  impossible  to  amend  were  dropped,  and  the 
substance  of  them  incorporated  into  a  law  .  .  ."  Salter's  Grimes,  pp. 
150-152. 

John  Sherman,  in  a  letter  to  the  Cincinnati  Gazette,  printed  in  the  New 
York  Daily  Tribune  of  August  23,  1861,  elaborated  the  same  idea.  "It  is  true 
I  did  not  vote  for  Senator  Wilson's  resolution.  No  vote  by  yeas  and  nays 
was  taken  upon  it.  I  would  have  voted  against  it.  and  I  am  well  satisfied 
a  majority  of  the  Republican  Senators  would  have  voted  likewise.  But  it 
was  not  for  the  reason  you  state.  All  the  Republican  and  several  of  the 
Democratic  Senators  cordially  approved  and  justified  the  acts  of  the  Presi- 
dent   in    Baltimore,    and    so    declared    and   voted. 

"Senator  Wilson's  resolution  declared  that  the  President's  orders  increas- 
ing the  regular  army  and  suspending  the  writ  of  habeas  corpus  were  legal 
and  valid :  in  other  words,  were  among  the  powers  delegated  to  the  Pres- 
ident by  the  Constitution  .  .  .  The  legal  power  to  suspend  the  writ 
of  habeas  corpus  has  been  recently  claimed  for  the  President. 
While  I  approved  and  justified  the  acts  of  the  President,  I  could  not  say 
with  Senator  Wilson  that  they  were  strictly  legal  or  within  the  delegated 
powers.  There  are  times  when  our  Executive  ofiicer  must  anticipate  the 
action  of  Congress,  but  in  such  a  case  he  assumes  the  hazard  of  a  'Bill  of 
Impeachment,'  or  a  'Bill  of  Indemnity.'  The  President  merely  assumed  this 
hazard,  and  in  the  vacancy  of  Congress  wisely  assumed  a  power  not  dele- 
gated to  him  by  the  Constitution.  He  places  his  own  justification  in  his  mes- 
sage on  the  ground  of  public  necessity,  and  on  this  ground  his  acts  have 
been  approved,  justified  and  leg.nlized  by  Congress."  Note  again  the  use  made 
of  section   3  of  chapter  LXIll. 

[25] 


238  BULLETIN   OF    THE    UNIVERSITY    OF    WISCONSIN. 

formally  upon  record  as  authorizing  it  or  as  declaring  its 
legality.  The  former  course  mip:ht  have  embarrassed  the  Ex- 
ecutive;^" the  latter,  themselves/'' 

It  would  indeed  be  worth  while  to  determine  just  why  Con- 
gress, in  the  extra  session,  took  no  action  on  the  habeas  cor- 
pus question.  The  important  thing,  however,  is  established — 
that  it  took  no  action.  The  President  had  suspended  the  priv- 
ilege of  the  w'rit  on  his  own  authority ;  he  had  asserted  his 
constitutional  right,  under  the  given  circumstances,  so  to  do ; 
he  had,  nevertheless,  in  deference  to  the  older  interpretation 
of  the  habeas  corpus  clause  of  the  Constitution,  submitted 
the  question  of  the  expediency  of  congressional  action  to  the 
"better  judgment  of  Congress."  Congress,  at  the  ideal  time 
for  asserting  its  rights,  refrained  from  interfering  and  left 
the  President's  claim  unchallenged.  Another  question  sug- 
gests itself:  How  long  must  Congress  acquiesce  in  order  to 
perfect  the  President's  title  to  suspend?"* 


'"The  Grimes  letter  puts  it  in  this  way:  "It  must  be  apparent,  I  think, 
to  everyone  who  will  reflect  upon  the  subject,  that  to  have  attempted  such 
confirmation  [i.  e.,  to  have  passed  the  resolution]  would  be  to  inferentially 
admit  that,  as  commander-in-chief  of  the  Army  and  Navy  of  the  United 
States,  the  I'resident  had  no  power  to  suspend  the  operation  of  that  writ 
without  congressional  authority.  Very  few,  if  any,  loyal  members  of  Congress 
were  willing:  to  admit  that.  They  did  not  doubt  but  that  he  had  complete 
power  in  the  premises,  and  they  chose  to  leave  him  to  exercise  his  authority 
under  the  constitution  according  to  his  own  judgment.  Loc.  cit.  Cf.  the 
€quall.y  emphatic  opposite  view  of  Shei-man.  al)ove.  p.  '2y,7.  footnote. 

"Breckinridge,  for  example,  said.  August  2:  "My  deliberate  judgment  is, 
that  in  some  mode  the  Senate  will  avoid  putting  itself  on  record  in  favor  of 
(he  principles  contained  in  this  resolution.  .  ."  Globe,  1st  S.  37th  Cong, 
p.  30li.  Doolittle  denied  any  intention  "to  recoil  from  the  responsibility  of 
approving   the   acts  of   the  Administration."     Ibid.   p.    452. 

'"Lord  John  Russell,  an  acute  observer,  was  interrogated  in  the  House  of 
Lords.  February  10.  1802.  on  the  subject  of  the  political  arrests  in  the  United 
States.  In  his  interesting  reply,  he  said,  inter  alia  :  "The  question  itself 
was  brought  before  Congress  and  a  resolution  was  proposed  that  there  should 
be  no  arbitrary  arrests  except  with  the  sanction  of  Congress.  But  it  was 
contended  that  it  was  part  of  the  prerogative  of  the  President,  and  a  large 
majority  decided  that  the  question  should  not  be  discussed  and  thereby  left 
the  I'resident  to  act  for  himself."  See  the  whole  extract  from  the  proceed- 
ings of  the  British   I'arliament,    ll.j   War  lieeorcls,  pp.   213-216. 


[26] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     239 


CHAPTER  III. 
THE  INACTION  OF  THE  SECOND  SESSION. 

The  unwillingness  displayed  by  Congress  in  the  extra  ses- 
sion to  take  positive  action  on  the  vexed  problem  of  habeas 
corpus  continued  throughout  the  ensuing  long  session.  There 
was  not  more  than  a  tithe  of  the  interest  shown  in  the  sum- 
mer of  18G1,  and  the  only  bill  which  saw  the  light  under  aus- 
pices  at  all  favorable  was  kept  back  from  consideration  of 
either  House  until  July  7,  18G2,  when  the  end  of  the  session 
was  in  plain  view.^ 

This  bill  (House  No.  363)  was  framed  by  the  House  Com- 
mittee on  the  Judiciary.  March  13,  1862,  Mr.  May,  for  the 
committee,    reported    '"a  bill   to    provide   for   the   discharg-e    of 


^The  habeas  corpus  material  of  the  session,  outside  of  tlie  liill  in  question, 
is  sliglit.  In  tlie  House  Pendleton  offered  a  resolution,  December  1(».  declar- 
ing that  Congress  nlone  has  power  to  suspend.  It  was  laid  on  the  table,  108 
to  26.  Glohe.  2d  S.  o7th  Cong.  pp.  40-4.">.  Vallandigham.  I)eceml)er  2:'..  in- 
troduced a  personal  liberty  bill,  to  imprison  the  President  for  two  years 
should  he  make  any  more  arbitrary  arrests.  It  was  referred  to  the  Judiciary 
Committee  and  slept  the  long  sleep.  Ibifl.  pp.  167,  2070.  In  the  Senate 
Trumbull  offered  a  resolution,  December  12.  asliing  the  Secretary  of  State  to 
report,  inter  alia,  under  what  law  he  made  arrests  in  loyal  States.  The  reso- 
lution was  referred,  against  Trumbull's  will,  to  the  Judiciary  Committee. 
Ibid.  pp.  60,  90-98.  Senator  King's  resolution  of  December  2."  favoring  the 
prosecution  of  State  prisoners  in  the  courts  went  without  debate  to  the  same 
committee.  Ibid.  pp.  161.  175.  Powell's  resolution  of  April  21.  1862,  ask- 
ing detailed  information  concerning  Kentucky  arrests  met  considerable  op- 
position, but  after  its  language  had  been  made  very  respectful  it  was  allowed 
to  go  through.  Ibid.  pp.  1732,  211."?.  2.393  and  passim.  January  21.  1862. 
Bill  No.  33  of  the  extra  session  was  taken  up  and  recommitted  to  the  Judi- 
ciary Committee.  Ibid.  pp.  115,  409.  May  5  Carlile  introduced  a  bill  to 
regulate  arbitrary  arrest.=?.  It  went  promptly  to  the  same  committee.  Ibid. 
p.  1935.  July  12  the  Judiciary  Committee  reported  back  the  King  and  Trum- 
bull resolutions  and  was  discharged.  Ibid.  p.  3271.  .Tnl.v  11  and  12  it  re- 
ported back"  Bill  No.  33  and  Carlile's  bill  and  recommended  their  indefinite 
postponement.  Ibid.  pp.  3245,  3271.  (On  the  latter  date  the  committee  re- 
ported back  House  Bill  No.  362  favorably.)  Shellabarger's  long  speech  of 
May  12,  in  House  Committee  of  the  Whole,  defending  suspension  by  the 
President,  completes  the  catalogue.     Ibid.  pp.  2069-2074. 

[27] 


240  BULT.ETIN   CF    THE    UNIVERSITY    OF   WISCONSIN. 

State  prisoners  and  others,  and  to  authorize  judges  of  the 
United  States  courts  to  take  bail  or  recognizances  to  secure 
the  trial  of  the  same ;  which  was  read  a  first  and  second  time, 
recommitted  to  the  Committee  on  the  Judiciary,  and  ordered 
to  be  printed.-  July  7,  1862,  the  committee,  through  Bing- 
ham, reported  with  amendments  the  bill  it  had  originally  re- 
ported almost  three  months  before.^  The  first  section  of  the 
amended  bill  provided  for  the  discharge  on  terms,  by  the  fed- 
eral courts,  of  political  prisoners  who  should  not  have  been 
indicted  or  presented  by  a  grand  jury  attending  said  courts ; 
the  second  section  required  the  courts  to  discharge  upon  bail 
or  recognizance  political  prisoners  who  should  have  been  in- 
dicted or  presented  as  aforesaid,  provided  that  the  laws  en- 
titled them  to  liberation  on  bail  or  recognizance.  The  third 
section  of  the  amended  bill  was  new;^  the  original  bill  con- 
tained no  such  provision.     It  was  as  follows: 

"Sec,  3.  And  be  it  further  enacted,  That  it  is,  and  shall  be 
lawful  for  the  President  of  the  United  States,  whenever,  in 
his  judgment  by  reason  of  'rebellion  or  invasion  the  public 
safety  may  require  it,'  to  suspend,  by  proclamation,  the  privi- 
lege of  the  writ  of  habeas  corpus  throughout  the  United  States 
or  in  any  part  thereof,  and  whenever  the  said  writ  shall  be 
suspended  as  aforesaid,  it  shall  be  unlawful  for  any  of  the 
judges  of  the  several  courts  of  the  United  States,  or  of  any 
State,  to  allow  said  writ,  anything  in  this  or  any  other  act  to 
the  contrary  notwithstanding."^ 

Once  again  there  is  to  be  noted  the  curious  ambiguity. 
This  time  it  was  the  deliberate  work  of  the  House  Judiciary 
Committee.  What  is  the  meaning  of  "is  and  shall  be  lawful?" 
Does  the  section  declare  that  the  President  has  the  right  or 
does  it  give  him  the  right  to  suspend?  Bingham,  who  was 
surely  in  a  position  to  know,  said  it  was  "very  easy  of  com- 
prehension." "I  ask,"  he  continued,  "the  gentleman  to  con- 
sider that  the  amendment  is  in  the  very  words  of  the  Consti- 
tution   itself."*^     That,    however,    was    hardly    a    guarantee    of 


=  (??obe,   L'd    S.   :^7th    Cong.,    p.    1228. 

^Ibid.     p.    3105. 

*See   Bingham's  statement.     Ibid,   p.   3106. 

^•For  whole   bill    see   ibid.   pp.   3105-3106,   and   below,   pp.    268-270. 

Vbid.  p.   3106. 


[28] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     241 

clarity.     July  8   Biddle  attacked  the  problem  of  interpretation 
by  intimating  that  he  desired  the  section  amended  so  as  to 
read,  "That  it  may  and  shall  be  lawful  for  the  President  of  the 
United   States  whenever,   in  his  judgment,  by  reason  of  rebel- 
lion or  invasion  the  public  safety  may  require  it,  to  suspend 
by  proclamation,  for  the  period  of  twelve  months,  or  until  the 
next  meeting  of  Congress,  the  privilege  of  the  writ  of  habeas 
corpus  in  any  of  the  United    States,  or  in    any  part    thereof, 
wherein  the  laws  of  the  United  States  are  by  force  opposed, 
and    the    execution    thereof    obstructed."^     Bingham's    response 
was     still    evasive :     "The     gentleman     strangely    misconceives 
this    bill    if   he   supposes    there    is    anything   in   this    legislation 
which    puts    it    out    of    the    power    of    the    Congress    of    the 
United    States,    within    twelve    months    after    such    proclama- 
tion may  be  made,  to  put  an  end  to  the  law  itself.     The  bill, 
as  it  now    stands,  impliedly  and    expressly  upon  its  face,    is  a 
declaration  that   this   whole   matter,  in   so   far  as   it  can   be 
effected  by  legislation,  is  in  the  power  of  the  Representatives 
of  the  people.     .     .     .     "^     Biddle  had  finally  to  out   with   it. 
"Up  to  the  present  time  there  has  been  a  pretension  made  in 
behalf  of  executive  power  that  the  President  alone  has  the 
right    arbitrarily    to    imprison    any    American    citizen, 
this  bill    itself,  I  am  happy    to  see,    denies  that   right. "'^     Bing- 
ham allowed  this  assertion  to  pass  unchallenged,  but  the  ques- 
tion of  interpretation  would  not  down.     In  a  few  minutes  Col- 
fax said :     "If  by  voting  for  this  bill  we  imply  that  the  Presi- 
dent had  not  the  power,   for  the  salvation  of  the   country,   to 
suspend  the  writ  of  habeas  corpus,  I  will  not  vote  for  it.     .     . 
I  will  not  vote  for  any  bill  which  indirectly  assumes  that  he 
has  not  the  power. "^^     Bingham  answered,   at  once :     "The 
gentleman  from  Indiana  may  quiet  his  fears.     .      .     The  bill, 
neither  directly  nor  indirectly,  implies  any  such  thing.     As  I 
said  before,  by  the  common  judgment  of  everybody  who  has 
spoken  on  this  question,  the  bill  can  do  no  harm  if  Congress 
has  no  power  to  meddle  with  the  matter  at  all ;  if  it  has,  it 


■'Globe,  2d   S.   37th  Cong.   p.   3183. 

'Ibid. 

»lbid. 

^"Ibid.  p.  3184. 

[29] 


242  BULLETIN    OF   VIIE    UNIVEESITY   OF    WISCONSIN. 

covers  the  Executive  as  with  a  shield.  That  is  all  there  is  of 
it.  I  call  the  previous  question."^ ^  It  is  not  necessary  to 
push  further,  in  this  chapter,  the  question  of  interpretation 
in  the  House.  IJingham,  who  was,  if  anyone  was,  in  a  posi- 
tion to  know  the  mind  of  the  Judiciary  Committee,  admitted 
that  the  bill  neither  directly  nor  indirectly  implied  that  the 
President  had  not  the  power,  for  the  salvation  of  the  country, 
to  suspend  the  writ  of  habeas  corpus.  A  motion  to  lay  the 
bill  on  the  table  was  defeated.  SI)  to  29.^-  The  bill  was  there- 
upon passed,  without  any  record  of  the  yeas  and  nays.^'' 

The  Senate  received  the  bill  from  the  House  July  8,  1862, 
and  referred  it  to  the  Judiciary  Committee.^  ^  July  12  Trum- 
bull, for  the  committee,  reported  it  without  amendment'^  and 
with  a  recommendation  that  it  be  passed.^"  The  greater  por- 
tion of  the  brief  debate  upon  the  bill — reported  in  what  would 
amount  to  about  five  pages  of  the  Globe — was  devoted  to  the 
first  two  sections,  and  these  provoked  lively  opposition,  being 
construed  by  many  to  mean,  as  \\^ilson  put  it,  "a  jail  delivery 
of  traitors. "''"  July  IG  Wilson  moved,  in  Committee  of  the 
Whole,  to  strike  out  these  sections.  The  motion  failed  by 
the  narrow  vote  of  i8  to  19,  and  of  the  19  only  seven  were 
Republicans.^^  The  temper  of  the  Republicans  was  clearly 
ominous. 

The  debate  on  the  third  section  of  the  bill  was  brief  but  sig- 
nificant. Wilson  interpreted  the  section  as  bestowing  on  the 
President  congressional  authority  to  suspend.  "The  third 
section  of  the  bill,  authorizing  the  President  of  the  United 
States  to  suspend  the  writ  of  habeas  corpus,  I  think  very  well, 
and  am  very  willing  to  vote  for  it.  .  .  "^^  Trumbull,-'' 
Sumner-'    and   Foster--  interpreted   the   section   in   the   same 


"  Olohv,  2d  S.  37th  Cong.  p.  3189. 

'" /b(V7.     Colfax   voted    with    the   minority. 

"Ihhl.      For   text  see   below,    pp.   2<>S-1.'7<». 

"/bid.  p.  .3178. 

^'-Olohe,   2d  S.  37th  Cong.  p.  3178. 

^^Ihid.   p.  3360. 

'■/biV7.  p.  3359. 

'«/bi(7.  p.  .'5384. 

"•/bf-rf.  p.  3360. 

■^Ibid.   p.  3,38.%. 

^'Ihid. 

^-Ibid.   p.  3361. 

[30] 


SELLERY LIXCOLS^S    SUSPENSION    OF    HABEAS    CORPUS.       2i3 

way.  Henderson's  adherence  to  this  construction  was  less 
emphatic:  "The  third  section  of  the  bill,  as  I  understand  it, 
if  there  is  anything  in  it,  simply  assumes  the  power  in  Con- 
gress to  suspend  the  privilege  of  the  writ  of  habeas  corpus."^^ 
Howe  took  the  other  view.  In  speaking  of  the  first  section 
he  said :  "This  proceeds  on  the  assumption  that  the  Govern- 
ment has  exercised  no  power  with  which  it  is  not  clothed, 
that  it  has  only  exerted  power  with  which  it  is  clothed,  and 
this  is  to  clothe  the  judicial  department  of  the  Government 
with  power  which  it  does  not  now  possess,  to  order  the  dis- 
charge  of  these  persons.  .  .  This  bill,  in  the  first  section, 
assuming  that  the  prisoner  is  rightfully  confined,  and  there- 
fore that  he  has  no  right  to  the  writ  of  habeas  corpus,  pro- 
vides that  he  may  apply  to  the  court  for  an  order,  and  not  for 
a  writ.  .  .  "-'  The  peculiar  language  of  the  third  sec- 
tion did  not  escape  him.  "In  the  very  same  bill,"  he  said, 
"in  which  you  are  trying  to  discharge  prisoners  by  an  order, 
you  declare  that  it  is  the  right  of  the  President  already,  and 
shall  continue  to  be  his  right,  to  suspend  the  writ  of  habeas 
evrpiis.  You  do  not  propose  to  confer  that  power  upon  him, 
but  to  recognize  it  as  his.  .  .  Now  what  is  the  meaning 
of  the  whole  bill?  .  .  .  Is  not  that  the  effect  of  the  whole 
act  [bill],  acknowledging  the  right  of  the  President  to  sus- 
pend the  writ  of  habeas  corpus,  which  is  the  time-long  remedy 
for  persons  restrained  of  their  freedom  contrary  to  law,  and 
creating  a  new  remedy  which  will  discharge  the  prisoner  in 
spite  of  the  suspension  of  the  writ  of  habeas  corpus. 
Now  it  does  seem  to  me  that  either  you  ought  to  strike  out 
the  first  two  sections  or  the  last."-"'  Howe's  argument  is,  as 
a  whole,  worthy  of  consideration. 

Cowan  proposed  a  number  of  amendments  to  the  third  sec- 
tion which  have  a  direct  bearing  on  the  fundamental  problem. 
These  amendments,  agreed  to  in  Committee  of  the  Whole, 
caused  the  section  to  assume  this  form :  "That  it  is  and  shall 
be  lawful  for  the  President  of  the  United  States  whenever, 


'■^Glohe,   2d  S.  37th  Cong.  p.  3386. 
"7btd.  pp.  33G1-3362. 
^^IMd.   p.  3362. 


[31] 


244  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

(Congress  not  being  in  session,)  in  his  judgment,  by  reason 
•of  'rebellion  or  invasion  the  public  safety  may  require  it,'  to 
suspend  by  proclamation  the  privileges  of  the  writ  of  habeas 
corpus  in  all  cases  of  political  offences  throughout  the  United 
States  or  in  any  part  thereof,  until  the  meeting  of  Congress 
thereafter ;  and  whenever  and  wherever  the  said  writ,  &c.""® 
Howe  demanded  the  yeas  and  nays,  in  the  Senate,  on  the 
amendment  inserting  the  words  "Congress  not  being  in  ses- 
sion," and  in  reiterating  his  interpretation  of  the  section  re- 
marked: "The  third  section,  as  it  stands  in  the  bill,  affirms 
what  I  believe  to  be  the  law  of  the  land,  that  it  is  lawful  for 
the  President  of  the  United  States,  whenever,  in  his  judgment, 
by  reason  of  rebellion  or  invasion,  the  public  safety  may  re- 
quire it,  to  suspend  the  writ  of  habeas  corpus.  The  effect  of 
these  amendments,  taken  altogether,  is  to  declare  that  that 
may  be  lawful  for  the  President,  in  a  certain  contingency,  that 
is  to  say  in  the  absence  of  the  Congress  of  the  United 
States.  .  .  "-'  The  amendment  was  concurred  in  by  a  vote 
of  33  to  5.-^  This  vote  cannot,  of  course,  be  regarded  as  a  definite 
expression  of  the  sentiment  of  the  Senate,  for  opponents  of  the 
bill  might  well,  and  doubtless  did,  vote  for  the  amendment  in 
order  to  expedite  the  destruction  of  the  bill. 

The  Senate  concurred  in  all  Howe's  amendments  to  the 
third  section.  Other  amendments  designed  to  perfect  the  bill 
or  nullify  it  were  offered,  and  debate  was  begim  upon  them 
when  Chandler  intervened  with  a  very  long  speech  on  military 
mismanagement — a  topic  which  he  admitted  was  hardly  rele- 
vant— for  which  he  was  afterwards  rebuked  on  the  ground 
that  he  divulged  the  proceedings  of  the  Committee  on  the 
Conduct  of  the  War.-^  It  was  the  day  before  the  end  of  the  ses- 
sion. He  talked  until  the  evening  recess  came ;  he  talked 
after  the  evening  recess,  and  when  he  had  at  length  concluded 
Wilson  promptly  moved  that  the  Senate  go  into  executive 
session.^"     The    success    of   Wilson's    motion    would    mean,    of 


^^Olohe,   2d  S.  37th  Cong.  p.  3384. 

^Ibid.   p.  3385. 

» Ibid. 

^lUd.  pp.   3386-3392,  3401. 

^IMd    p.  3392. 

[32] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     245 

course,  the  failure  of  the  bill.  Trumbull  protested  against  the 
indirection  of  this  method  of  getting  rid  of  the  bill — did  not 
want  it  "to  be  overslaughtered  in  this  way" — and  demanded  the 
yeas  and  nays  on  Wilson's  motion.  The  result  stood  25  for 
the  executive  session  and  14  against  it.  The  yeas  were 
solidly  Republican ;  the  nays  included  five  Republicans.^^  The 
bill  was  decisively  disposed  of  for  the  session. 

The  thirty-seventh  Congress,  in  its  second  session,  made  no 
positive  advance  toward  a  determination  of  the  habeas  cor- 
pus issue.  The  House,  to  be  sure,  committed  itself  upon  the 
question.  But  the  bill  which  embodied  its  decision,  while 
logically  an  assertion  of  Congressional  jurisdiction  over  the 
subject  of  suspension,  was  so  phrased,  in  the  vital  third  sec- 
tion, that  it  could  be  and  was  interpreted  as  leaving  unas- 
sailed  the  President's  right  to  suspend.  The  Senate's  dis- 
approval of  the  bill  was  obvious.  Its  vote  of  33  to  5  in  favor 
of  inserting  the  words  "Congress  not  being  in  session"  if 
bona  Ude  would  go  far  to  show  that  the  Senate  was  a  supporter 
of  the  President's  initial  claim.  But  its  indirect  though  em- 
phatic rejection  of  the  bill  leaves  the  question  of  its  attitude 
on  the  issue  still  open.  Once  again  Congress*  drew  back  from 
positive  action  on  the  habeas  corpus  question.  The  Presi- 
dent's claim  rightfully  to  suspend  under  certain  circumstances 
went  again  unchallenged. 


"GJobe,  2d  S.   37th  Cong.   p.   3393. 

3 


[33] 


246  BULLETIN    OF   THE    TJNIVEKSITY    CF   WISCONSIN. 


CHAPTER  IV. 

THE  ACTION  OF  THE  THIRD  SESSION. 

The  long-continued  inaction  of  Congress  came  to  an  end 
March  3,  1863,  with  the  passage  of  the  Habeas  Corpus  Act  of 
that  date.  Weeks  before  this,  however,  several  Republican 
senators  expressed  the  opinion  that  it  was  now  too  late  for  an 
assertion  of  exclusive  Congressional  jurisdiction  over  the 
matter.  Lane  of  Indiana  said,  December  22,  1862 :  ''Gentle- 
men speak  of  the  President's  usurpation  of  authority.  The 
Constitution  authorizes  the  suspension  of  the  privilege  of  the 
writ  of  habeas  corpus,  without  saying  in  express  terms  who 
shall  exercise  that  authority.  The  President  has  done  it.  It 
is  an  accomplished  fact  and  cannot  be  undone.  Suppose  we 
now  say  that,  in  our  opinion,  the  authority  is  given  to  Con- 
gress, can  we  change  his  convictions  of  duty  or  control  his 
actions?  Such  a  course  will  only  bring  about  a  conflict  of 
authority  between  Congress  and  the  President,  and  weaken 
the  power  of  both."^  A  similar  thought  was  developed  by 
Collamer,  January  9,  1863 :  "The  Executive  is  just  as  much 
clothed  with  authority,  and  bound  in  duty  when  called  on,  to 
give  construction  to  the  Constitution  in  the  execution  of  it 
as  we  are,  and  his  decision  is  just  as  binding  as  ours  .  .  . 
and  it  is  not  common  courtesy  for  one  department  of  this 
Government  to  say  to  another,  'We  say  the  Constitution 
means  so  and  so,  and  we  are  infallible.'  The  judiciary,  when 
the  question  arises  before  them  in  the  proper  form,  decide  the 
Constitution  in  the  particular  suit,  and  that  is  all  there  is  in 
their    decision."-     Collamer    then    drew    the    practical    conclu- 


^Oloie,  3d  S.  37th  Cong.  p.  158. 
2/6id   p.  247. 

[34] 


SELLEEY — Lincoln's  suspension  of  habeas  corpus.     24Y 

sion  that  Congress  should  treat  the  President's  decision  as 
settled  by  a  body  as  competent  as  itself,  and  shape  its  legis- 
lation accordingly.  It  should  not  pass  any  bill  in  which  the 
necessary  implication  was  that  the  President's  decision  was  in- 
correct. The  President  should  not  be  asked  to  approve  any 
such  bill  and  thus  "publish  to  the  world  that  he  has  done  that 
which  he  had  no  legal  right  to  do."^ 

Cowan  expressed  the  same  idea  with  more  emphatic  brevity, 
January  27 :  "Now,  whether  this  question  of  the  habeas  corpus 
has  been  decided  right  or  wrong,  it  has  gone  by;  let  it 
go  ...  it  has  been  decided;  the  decision  has  been  acted 
upon ;  and  it  is  idle  for  us  now  to  agitate  ourselves  and  divide 
ourselves  in  its  discussion  when  we  can  come  to  no  conclusion, 
because  we  have  no  judicial  power,  we  can  make  no  decision 
that  will  be  binding  upon  anybody."* 

The  Democrats  in  Congress  were  by  no  means  convinced 
that  the  question  was  settled.  They  opened  the  session  with 
a  vigorous  and  systematic  onslaught  upon  Presidential  sus- 
pension in  which  the  tonic  effect  of  the  late  elections  and 
other  manifestations  of  public  opinion  is  apparent.^  Their 
attack  was,  however,  unaccompanied  by  any  plan  for  positive 
legislation.*' 

Republicans  in  House  and  Senate  took  up  the  question 
promptly  and  almost  concurrently.  December  8,  1862,  Thad- 
deus  Stevens,  the  aggressive  and  radical  leader  in  the  House, 
introduced  a  bill  (House  No.  591)  "to  indemnify  the  President 
and  other  persons  for  suspending  the  privilege  of  the  writ  of 
habeas  corpus,  and  acts  done  in  pursuance  thereof ;  which  was 


^Glohe,  3d   S.    37th   Cong.   p.    247. 

*IMd.  p.   542. 

^See,    e.   g.,  Powell's  jubilant  reference  to  the  elections,    ibid.   p.   33. 

8  The  character  of  the  attack  is  indicated  by  the  resolutions  offered  during 
the  first  few  days  of  the  session.  In  the  House  Cox  offered  a  resolution  con- 
demning ext'^ordinary  arrests,  December  1 — the  first  day  of  the  session. 
Globe,  3d  S.  ..th  Cong.  p.  2.  The  next  day  Powell  introduced  a  resolution 
in  the  Senate  which  was  substaintially  identical  with  Cox's.  Ibid.  p.  3.  De- 
cember 1  Richardson  made  a  motion  in  the  House  to  secure  information  from 
the  President  concerning  Illinois  arrests.  Ibid.  The  next  day  Powell  sought 
similar  information  in  the  Senate  concerning  Kentucky  arrests.  Ibid.  pp. 
3,  14.  December  3  Senator  Saulsbury  introduced  his  much-debated  resolu- 
tion for  information  touching  two  Delaware  arrests.     Ibid.   pp.  4,  5. 


[35] 


248  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

read  a  first  time."'  The  bill  in  its  curt  directness  is  charac- 
teristic of  its  author. 

"Whereas,  since  the  4th  day  of  March.  18G1,  the  United 
States  have  been  in  an  insurrectionary  and  rebellious  condi- 
tion, and  the  public  safety  has  required  that  the  privilege  of 
the  writ  of  habeas  corpus  should  be  suspended ;  and  whereas 
during  that  time  the  privilege  of  the  said  w^it  has  been  sev- 
eral times  suspended  by  the  President  of  the  United  States, 
and  several  arrests  and  impriisonments  have  taken  place  un- 
der and  in  consequence  thereof;  and  whereas  there  is  not  en- 
tire unanimity  of  opinion  as  to  which  branch  of  the  Govern- 
ment possesses  the  constitutional  power  to  declare  such  sus- 
pension :     Therefore, 

"Be  it  enacted,  &c.,  That  all  such  suspensions,  arrests  and  im- 
prisonments, b}'  whomsoever  made  or  caused  to  be  made,  un- 
der the  authority  of  the  said  President,  shall  be  confirmed  and 
made  valid;  and  the  said  President,  Secretaries,  heads  of  De- 
partments, and  all  persons  who  have  been  concerned  in  mak- 
ing said  arrests,  or  in  doing  or  advising  any  such  acts  as 
aforesaid,  are  hereby  indemnified  and  discharged  in  respect 
thereof,  and  all  indictments,  and  information,  action,  suits, 
prosecutions,  and  proceedings  whatsoever  commenced,  or  to 
be  commenced,  against  the  said  President,  or  any  of  the  per- 
sons aforesaid  in  relation  to  the  acts  and  matters  aforesaid, 
or  any  of  them,  are  hereby  discharged  and  made  void. 

"Sec.  2.  And  he  it  further  enacted.  That  during  the  existence 
of  this  rebellion  the  President  shall  be,  and  is  hereby,  in- 
vested with  authority  to  declare  the  suspension  of  the  privi- 
lege of  the  writ  of  habeas  corpus,  at  such  times,  and  in  such 
places,  and  with  regard  to  such  persons,  as  in  his  judgment  the 
public  safety  may  require."^ 

The  bill  was  obviously  designed — it  was  in  truth  its  main 
purpose — to  void  or  prevent  the  bringing  of  civil  or  criminal 
suits  against  the  President  or  any  person  acting  under  his  au- 
thority for  acts  which  would  in  the  normal  course  of  af- 
fairs be  illegal.     The  danger  was  not  altogether  prospective. 


TGlobe,  3d  S.  37th  Cong.  p.  20. 
^Ihid.  p.   529. 


[36] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     249 

In  the  spring  of  1SG2  Simon  Cameron,  late  Secretary  of  War, 
had  been  arrested  at  the  suit  of  Pierce  Butler  for  ''trespass 
vi  et  annis,  assault  and  battery,  and  false  imprisonment,"  and 
Secretary  Welles  had  been  exposed  to  similar  reprisals.''  It 
was  even  to  be  feared  that  Abraham  Lincoln  might  sufifer 
greater  humiliation.  Colfax  said,  December  8,  18G2 :  "We 
have  either  to  vindicate  him  [the  President]  as  now  proposed 
or  leave  him  to  be  persecuted  as  soon  as  he  retires  from  office 
by  those  whom  he  arrested."^''  Thaddeus  Stevens  went  even 
further:  "If  there  be  a  remedy  for  these  false  imprisonments 
it  may  extend  to  indictments  as  well  as  to  civil  suits,  and  how 
is  the  Government  to  indemnify  the  President  for  two  years' 
imprisonment  in  the  penitentiary?"^^ 

The  Stevens  bill  lacked  the  ambiguity  which  had  character- 
ized nearly  all  the  preceding  habeas  corpus  measures.  It  un- 
equivocally granted  the  President  authority  to  suspend:  it 
did  not  declare  that  the  President  "is  authorized  to  suspend," 
but  enacted  that  he  "shall  be  and  is  hereby"  authorized  to  sus- 
pend. And  yet,  did  the  bill  implicitly  condemn  the  Presi- 
dent's claim  to  suspend  on  his  o\m\  authority?  Thirty-seven 
minority  members  of  the  House  in  a  formal  protest  asserted 
that  the  bill  "purports  to  indemnify  the  President  and  all  act- 
ing under  his  authority  for  acts  admitted  to  be  w^rongful."^^ 
Several  members  of  the  Senate  and  other  members  of  the  House, 
Republican  and  Democratic,  interpreted  the  bill  in  a  similar  way.^^ 


'Globe,  M  S.  37th  Cong.  pp.  165-166;  115  War  Records,  pp.  505-509;  Globe, 
2d  S.  37th  Cong.  pp.  1763,  3245.  Cowan  intimated  in  1866  that  the  Habeas 
Corpus  Act  was  orisinally  framed  to  protect  an  intimate  friend  of  the  President. 
Globe,  1st  S.  39th  Cong.  p.  2021. 

">  Globe,   3d    S.   37th    Cong.    p.   21. 

^^Ibid.  p.  22.  Cf.  Horace  Binney's  opinion  in  his  letter  of  May  17,  1862,  to 
Francis  Lieber  :  "But  without  the  Habeas  Corpus  clause  it  [the  power  to' in- 
demnify] would  not  belong  to  the  Federal  government  at  all.  With  that  clause, 
however,  if  Congress  has  the  power  of  suspension,  and  not  the  President,  why 
does  not  the  ratihabitio  coyer  the  whole  wrong,  foK  the  President's  protection? 
It  strikes  me  that  this  matter  ought  not  to  be  neglected  by  the  President's 
friends  in  the  two  houses,  while  they  are  the  majority  ...  I  should  be 
sorry  to  see  the  President  come  to  grief  between  a  bitter  judiciary  and  a  bitter 
jury."     C.   C.  Binney's  Binney,  pp.  355-356. 

-"""Globe,  .3d   S.  37th  Cong.  p.   165. 

"In  the  Senate,  Collamer  (iUd.  p.  248),  Saulsbury  (ibid.  p.  543),  and  Mc- 
Dougall  (ibid.  p.  548).  In  the  House,  May  (ibid.  p.  1069),  Walker  (iUd. 
p.  1086),  Yeaman   (ibid.)   and  Stiles  (ibid.  p.  1087). 

[37] 


250  BULLETIN    OF   THE    TTNIVEESITT   OF    WISCOI^SIN. 

Olin'iS  statement  in  the  House  is  at  least  a  tribute  to  the  influence 
of  Thaddeus  Stevens:  "In  my  judgment,  sir — which  may  not 
be  worth  much — the  bill  is  unnecessary.  I  hold  that  the 
President  had  the  authority  by  law,  and  was  the  proper 
tribunal,  to  exercise  all  the  powers  that  he  has  exercised  in 
suspending  the  writ  of  habeas  corpus;  nevertheless  I  concur 
with  my  friend  from  Pennsylvania  that  a  bill  of  this  character 
is  proper  under  the  circumstances."^* 

Stevens's  interpretation  of  his  own  measure  must  be  given 
a  great  amount  of  weight:  "I  have  not  confessed  the  illegal- 
ity of  these  acts,  for  this  reason :  the  Attorney  General  of 
the  United  States  and  the  Administration  have  held  that  the 
President  had,  without  such  a  bill,  full  power;  and  if  he  had 
the  power  to  order  all  these  acts,  then  there  is  no  remedy  for 
anybody.  A  remedy  exists  only  where  there  is  a  wrong.  If 
the  President  had  the  right  to  suspend  the  writ  of  habeas 
corpus,  and  under  that  these  results  took  place,  I  should  like 
to  know  who  had  the  right  of  action  against  him?  There  can 
be  no  such  thing.  If  there  be  a  remedy  for  these  false  im- 
prisonments it  may  extend  to  indictments  as  well  as  to  civil 
suits,  and  how  is  the  Government  to  indemnify  the  President 
for  two  years'  imprisonment  in  the  penitentiary?  What  kind 
of  indemnity  is  the  Government  to  afford  to  men  thus  prose- 
cuted under  these  laws?  But,  sir,  if  the  President  was  right 
in  supposing  that  he  had  the  authority  to  suspend  the  privi- 
lege of  the  writ  of  habeas  corpus,  I  admit  wdth  my  friend  from 
New  York  [Mr.  Olin]  that  there  would  be  no  necessity  for 
this  bill.  But  then  it  would  do  no  harm,  it  would  confer  no 
additional  power,  it  would  do  only  what  could  be  done 
before.  But  I  have  recited  that  there  is  doubt  on  that  sub- 
ject. .  .  I  do  doubt  the  authority  of  the  President  of  the 
United  States  to  suspend  the  privilege  of  the  w^rit  of  habeas  cor- 
pus except  when  there  is  an  absolute  necessity  for  him  to  have 
that  power,  or  an  emergency  when  Congress  is  not  in  ses- 
sion."^^  The  last  is  a  significant  concession  from  a  great 
stickler  for  Congressional  "sovereignty."^^ 


^*GloT}e,  3d  S.  37th  Cong.  pp.  20-21. 
"/bid.  p.  22. 

[38] 


SELLEKY — Lincoln's  suspension  of  habeas  corpus.     251 

Stevens  introduced  his  bill  December  8.  He  proposed  that 
it  should  be  postponed  for  three  days  and  that  it  should 
be  made  a  special  order  and  continue  such  until  disposed 
of.  He  encountered,  however,  the  exigent  opposition  of 
Vallandigham,  and  thereupon  peremptorily  withdrew  his 
motion  to  postpone,  asked  that  the  bill  be  put  upon  its  pas- 
sage, and  moved  the  previous  question.  A  brief  but  warm 
wrangle  over  procedure  ensued,  but  Stevens's  domination  of 
the  majority  was  so  firm  that  the  bill,  although  still  un- 
printed,  was  rushed  through  the  various  parliamentary  stages 
and  passed  by  a  vote  of  90  to  45.  It  was  the  most  expediti- 
ous passage  that  a  habeas  corpus  bill  ever  had  during  the 
civil  war.^^  Two  weeks  later,  when  the  Republicans  had  had 
an  opportunity  to  reflect  upon  their  precipitation,  Pendleton 
submitted  the  protest  of  the  thirty-seven  minority  members 
against  the  bill  and  the  manner  of  its  passage.  On  Stevens's 
motion  the  resolution  of  protest  was  laid  upon  the  table,  75 
to  41.18 

The  Senate  received  the  bill  December  9  and  referred  it  to 
the  Judiciary  Committee,  of  which  Trumbull  was  still  chair- 
man.^^ 

Trumbull's  enduring  interest  in  a  solution  of  the  habeas 
corpus  problem  was  exhibited  later  in  the  same  day.  The 
debates  on  Saulsbury's  resolution  concerning  the  Delaware 
arrests  were  beginning  to  unfold  their  length.  Trumbull  in- 
terrupted their  progress  for  a  moment  to  announce  that  he 
would  move  to  lay  the  resolution  upon  the  table  and  to  take 
up  House  Bill  No.  363 — "a  practical  question."-''  December 
10  the  Senate,  on  his  initiative,  took  up  the  bill  and  ordered 
it  printed  with  a  view  to  its  further  consideration. -^  Debate 
upon  it  began  December  16.^^ 

The  ambiguity  of  the  third  section  of  House  Bill  No.  362 
had  been  demonstrated  to  the  Senate  in  the  session  of  1861- 


"GZobe,  3d  S.  37th  Cong.  pp.  14,  20-22, 

18/bid.  pp.  165-166. 

"/bid.  pp.  25,  26. 

^IMd.  p.  31. 

«i/bid.  p.  52. 

«/bid.  p.  102. 


[39] 


252  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

18G2.-''  Xo  senator  alluded  to  it  in  the  session  of  1862-63. 
Every  one  who  discussed  the  bill  took  it  for  granted  that  the 
bill,  with  its  "That  it  is  and  shall  be  lawful  for  the  Presi- 
dent .  .  to  suspend  ..."  meant  Congressional  au- 
thorization to  suspend.  Field's  statement  may  be  given  as 
fairly  typical.  There  were,  he  said,  two  objections  to  the 
third  section :  '"The  first  is,  it  takes  for  granted  that  the 
power  of  suspending  the  privilege  of  the  writ  of  habeas  corpus 
is  conferred  by  the  Constitution  upon  Congress  alone ;  and 
then  it  proposes  that  Congress  should  delegate  to  the  Presi- 
dent, not  only  the  power  of  suspending  the  writ,  but  also  of 
determining  whether  the  exigency  has  arisen  which  would 
justify  such  a  suspension  ...  I  hold  that  the  Consti- 
tution of  the  United  States  confers  upon  the  President,  and 
not  upon  Congress,  the  power  of  suspending  the  privilege  of 
the  writ  of  habeas  corpus;  but  if  mistaken  in  this,  I  hold  that 
Congress  has  no  authority  to  delegate  to  the  President  the 
exercise  of  such  a  power."^*  Collamer  went  even  further,  and 
asserted  that  the  bill  was  a  condemnation  of  Presidential  sus- 
pension :  "It  goes  on  the  ground  that  anything  he  [the 
President]  has  done  by  way  of  imprisoning  these  people  is 
not  in  the  least  altered  by  his  suspension  of  the  habeas  Corpus; 
that  is  to  say,  'we  are  right  about  the  construction  of  the  sus- 
pension of  the  habeas  corpus  act  [clause  of  the  Constitution], 
and  you  are  wrong.'  "-^  It  is  at  least  curious  that  Howe  did 
not  remind  the  Senate  of  the  other  interpretation  of  the 
third  section  of  the  bill. 

Collamer  was  dissatisfied  with  House  Bill  No.  362  because 
it  seemed  to  him  to  reflect  upon  the  President's  claim  to  sus- 
pend. House  Bill  No.  591 — Stevens's  bill —  was  equally  ob- 
jectionable to  him  because  it  was,  he  feared,  beyond  the  com- 
petence of  Congress,  Avhich  did  not  possess  "the  omnipotent 
powers  of  Parliament."     If  it  was  to  be  apprehended  that  the 


"  See   chapter   III,   above. 

^*  Globe,  3d   S.   37th   Cong.,   p.   216. 

-^  Ibid.  p.  247.  See  also  statements  of  Senators  Powell  (Globe,  3d  S. 
37th  Cong.  p.  Ill),  Lane  of  Indiana  (ibid.  p.  157),  Wright  (ibid.  p.  200). 
Ten  Eyck  (ibid.  p.  274),  Trumbull  (ibid.  pp.  1090,  1092)  and  Doolittle 
(ibid.  p.  1092).  In  the  House,  Wyclifife  vigorously  asserted,  with  animad- 
versions, that  the  bill  was  declaratory.     Ibid.  p.   1105. 

[40] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     253 

courts  might  consider  the  President's  suspension  an  exercise 
of  unfounded  authority  it  would  be,  in  his  opinion,  unwise  to 
attempt  to  smother  up  the  vmconstitutionahty  by  passing  an 
act  whose  constitutionaUty  would  be  questionable.-"  He  did 
not  confine  himself  to  destructive  criticism.  His  remarks 
were  in  fact  prefaced  by  the  introduction  of  a  bill  (Senate  No. 
457)  embodying  his  views.-'  The  bill  was  referred  to  the 
Committee  on  the  Judiciary  and  on  Sumner's  motion  was  or- 
dered to  be  printed. ^^ 

Collamer's  words  made  such  an  impression  upon  the  Judi- 
ciary Committee  that  it  reported  a  bill,  substantially  the  same 
as  his,-"  January  1.").  18G3,  as  a  substitute  for  Stevens's  Bill  No. 
591,  which  had  lain  dormant  in  the  pigeon-holes  of  the  com- 
mittee ever  since  its  reference  early  in  December.^"  The  first 
section  of  the  substitute  provided  for  the  transfer  of  suits  be- 
gun in  a  State  court  for  trespasses  or  wrongs  done  or  com- 
mitted under  the  authority  or  color  of  authority  of  the  Presi- 
dent to  the  United  States  Circuit  Court.  The  second  section 
provided  that,  even  if  judgment  should  be  given  against  the 
defendant  or  respondent,  yet,  should  it  appear  to  the  court 
that  the  defendant  or  respondent  had  reasonable  or  probable 
cause  for  doing  what  he  did,  or  had  acted  in  good  faith,  no  ex- 
ecution should  issue  or  further  proceeding  be  had  until  after 
the  adjournment  of  the  then  next  ensuing  session  of  Con- 
gress. The  third  section  authorized  the  carrying  of  a  case  in 
which  final  judgment  had  been  rendered  by  the  Circuit  Court 
to  the  Supreme  Court,  and  the  fourth  fixed  a  period  beyond  which 
suits  could  not  be  brought."^ 

In  recommending  the  measure  which  his  committee  had  re- 
ported Trumbull  took  pains  to  point  out  that  it  did  not  reflect 
upon  the  legitimacy  of  Presidential  suspension:  'T  will 
say  ...  that  this  bill  does  not  depend  at  all  upon  the 
power  of  the  President  to  suspend  the  writ  of  habeas  corpus. 
Whether  he  has  the  power  or  not,  this  bill  would  be  necessary 

"« Globe,   3d    S.    37th  Cong.    pp.   247-248. 

*^January  9,  1863.     Substance  of  bill  is  given,  ibid.  pp.  248-249. 

"/bid.  p.  249. 

^Ibid.  pp.  321,  535,  539,  541. 

^Ibid.  p.   321. 

3'Text,   ibid.   p.    .j29. 

[41] 


254  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

and  it  would  be  just  as  necessary  if  he  had  the  power  to  sus- 
pend it  as  it  would  be  if  he  had  not;  because  the  suspension 
of  the  writ  of  habeas  corpus  does  not  of  itself  justify  the  arrest 
of  anybody.  .  .  So,  if  the  writ  of  habeas  corpus  was  sus- 
pended by  act  of  Congress  with  the  concurrence  of  the  Presi- 
dent, both  acting  together,  there  would  be  the  same  necessity 
for  this  act  to  protect  the  officers,  in  case,  acting  from  prob- 
able cause  and  in  good  faith,  they  had  wrongfully  made  ar- 
rests."32 

The  discussion  of  the  Judiciary  Committee's  substitute  for 
Stevens's  bill  was  animated,  but  it  was  begun  and  ended  on 
the  same  day,  January  27,  1863.  The  substitute  underwent 
a  variety  of  amendments,  of  which  one  ofifered  by  Cowan  is 
noteworthy.  It  provided  that  the  judge  might  interfere  be- 
fore judgment  had  been  rendered,  that  is,  that  whenever  in  the 
course  of  the  trial  it  was  discovered  that  there  was  probable 
cause  for  making  the  arrest,  the  judge  should  charge  the  jury 
to  that  effect  and  tell  it  that  that  was  a  defence  to  the  action 
and  no  judgment  should  ever  be  rendered.^^  Another  and 
most  important  amendment  was  added  at  the  instance  of  Sher- 
man, to  the  effect  that  political  prisoners  arrested  in  peaceful 
States  should  have  a  hearing  before  the  courts  within  thirty 
days,  provided  they  were  not  persons  subject  to  the  articles 
of  war.^*  The  bill,  as  amended,  was  passed  as  a  substitute 
for  Stevens's  bill  by  the  handsome  and  almost  suspicious  ma- 
jority of  33  to  7.^^     Its  title  was  changed  to  the  colorless  "An 


^Globe,  3d  S.  37th  Cong.  p.  534.  Trumbull's  explanation  does  not  seem  conclu- 
sive. The  Democrats,  in  this  session,  harped  much  upon  the  argument  that  sus- 
pension does  not  of  itself  authorize  extraordinary  arrest.  Collamer,  the  father 
of  the  bill  recommended  by  Trumbull,  held  the  opposite  view.  In  introducing 
Senate  Bill  No.  457,  he  said  :  "WTiat  did  the  Executive  need  to  do  for  these 
periods  of  extremity?  What  was  wanted?  It  was  this:  that  he  might,  if 
the  privilege  of  that  writ  was  suspended,  arrest  people  who  had  not  com- 
mitted crimes,  and  hold  them  to  prevent  their  committing  crimes  that  would 
put  the  nation  in  jeopardy.  If  he  was  only  to  arrest  those  people  who  had 
committed  crimes,  he  could  do  that  without  having  the  writ  of  habeas  cor- 
pus suspended  at  all."  Ibid.  p.  247.  Cf.  his  statement  on  the  substitute 
bill,  ibid.  p.  550. 

^Ibid.  p.  554.     This  amendment  became  section  2  of  the  substitute. 

^Ibid. 

''•Ibid.     Text  of  the  bill  is  given  below,  pp.  271-274. 


[42] 


SELLERY LINCOLN''s    SUSPENSION    OF    HABEAS    COKPUS.       255 

act  to  regulate  judicial  proceedings  in  certain  cases  therein 
mentioned."^® 

The  emasculation  of  the  title  of  the  Senate's  substitute,  and 
the  absence  from  it  of  anything  corresponding  to  that  clause 
of  the  Indemnity  Bill  which  invested  the  President  with 
authority  to  suspend,  are  not  to  be  taken  as  evidence  that  the 
Senate  was  agreed  that  the  question  of  the  legitimacy  of 
Presidential  suspension  was  an  idle  one.  That  question  was 
still  to  be  dealt  with  by  the  Senate  in  the  pending  House 
Bill  No.  362.^"  For  the  Senate's  bill,  just  passed,  was  particularly 
concerned  with  those  responsible  for  extraordinary  arrests, 
while  Bill  No.  3G2  was  devoted  almost  exclusively  to  the 
political  prisoners  themselves.  The  passage  of  the  Senate's 
substitute  for  Stevens's  bill  did  not  interrupt  proceedings  upon 
the  latter  measure. 

The  debate  upon  House  Bill  No.  362,  which  had  been  taken 
up  by  the  Senate  December  10,  1862,  did  not  become  brisk 
until  February.  Up  to  that  time  it  had  been  conducted  in  a 
leisurely  fashion  through  set  speeches  made  at  irregular  in- 
tervals, and  presenting  the  customary  arguments."®  It  was 
Trumbull — the  man  above  all  who  is  responsible  for  the 
Habeas  Corpus  Act  of  1863 — who  gave  life  to  the  debate, 
February  19,  by  offering  a  substitute  amendment  to  the  bill. 
Trumbull's  amendment  was  largely  a  recast  of  the  bill,  the 
third  section  alone  undergoing  grave  alteration.  The  order 
of  the  sections  was  also  changed,  the  third  section  of  the 
House  bill  becoming  the  first  section  of  the  substitute.^® 
Thus  the  first  section  of  the  substitute  dealt  with  the  suspen- 
sion of  the  privilege  of  the   writ,   while  the  second  and  third 


^'^Ololte,  3d  S.  37th  Cong.  p.  554.  Vallandigbam  had  tried  on  the  day  of  the 
passage  of  Stevens's  bill  "to  indemnify  the  president  and  other  persons"  Ijy  the 
House  to  have  the  title  reflect  more  obviously  upon  the  legitimacy  of  Presidential 
suspension  by  the  addition  of  the  words  "and  to  empower  the  President  to 
suspend  the  privilege  of  the  writ  of  habeas  corpus  throughout  the  United 
States."     He  failed,  of  course.     Ibid.  pp.   20-21. 

'^  It  was  really  involved  in  Sherman's  eleventh-hour  amendment,  but  the 
point  can  best  be  considered  in  the  last  chapter  of  this  essay. 

38  Field's  elaboration  of  the  argument  that  unless  the  President  can  sus- 
pend the  virtue  of  suspension  is  lost,   is  very  clever.     Ibid.  pp.  218-219. 

2«  Text  of  the  substitute  amendment,  ibid.  pp.  1090-1091.  For  Trumbull's 
categorical  statement  of  the  changes  he   has  made,  see  ibid.   p.   1092. 


[43] 


256  BULLETIN    OF   THE    UNIVERSITY    OF    WISCONSIN. 

sections  provided  for  the  liberation  of  ])olitical  prisoners  under 
conditions. 

The  first  section  of  the  substitute  is  the  one  with  which  this 
essay  has  particularly  to  do.  It  provided  "That,  during  the 
present  rebellion,  the  President  of  the  United  States,  when- 
ever in  his  judgment  the  public  safety  may  require  it,  is 
authorized  to  suspend,  by  proclamation,  the  privilege  [s]  of 
the  writ  of  habeas  corpus,  in  all  cases  of  political  ofifences, 
throughout  the  United  States,  or  any  part  thereof.      .      .      "^ 

There  are  important  differences  between  this  section  and 
the  third  section  of  the  House  bill.  Trumbull,  in  explaining 
the  differences,  summed  them  up  thus :  "The  House  bill  lim- 
ited the  suspension  until  Congress  should  meet.  The  sub- 
stitute I  propose  authorizes  the  suspension  wherever  the  Pres- 
ident, by  proclamation,  shall  declare  the  writ  suspended,  so 
long  as  the  proclamation  continues  in  force  and  the  rebellion 
exists."**^  Another  important  difference  he  did  not  allude  to. 
It  is  fundamental. 

What  is  the  meaning  of  the  words  "Be  it  enacted  .  .  . 
That,  during  the  present  rebellion,  the  President  ...  is  au- 
thorized to  suspend  ...  ?"  The  phrasing  differs  from  the 
outspoken  "And  be  it  further  enacted,  That  .  .  .  the  Presi- 
dent shall  be,  and  is  hereby  invested  wth  authority  to  declare  the 
suspension  .  .  .  "of  House  Bill  No.  591  and  from  the  cor- 
responding "And  be  it  further  enacted.  That  it  is,  and  shall  be 
lawful  for  the  President  ...  to  suspend  .  .  .  "  of 
House  Bill  No.  362.  Trumbull,  who  wrote  the  clause,  said 
that  it  meant  Congressional  authorization :  "The  substitute 
I  propose  authorizes  the  suspension  .  .  .  ;"*^  and  that  the 
section  might  be  so  interpreted  ever3^one  who  expressed  his 
views  on  the  point  agreed.*-  And  yet,  if  Trumbull  meant  the 
bill  to  authorize  suspension,  why  did  he  couch  the  clause  in 
such  unusual  language — be  it  enacted  that  the  President  is 
authorized    to  suspend?     Doolittle — not    Trumbull — was  the 


*"Glol)c,  M  S.  37th  Cong.  p.  1092. 

"See  ihifl.  pp.  -109?..  1094.  1158,  118.S.  IIST.  1204.  1205  for  statements  of 
Carlile,  Bayard,  Powell,  Richardson,  Howard.  Saulsbury  and  Collamer,  re- 
spectively. 


[44] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     257 

first  to  draw  attention  to  the  significance  of  the  phraseology: 
^'Mr.  President,  the  exposition  given  by  my  honorable  friend 
from  Illinois  of  this  bill  is  very  complete,  although  there  is 
one  suggestion  that  escaped  him  which  I  beg  leave  to  occupy 
the  attention  of  the  Senate  long  enough  to  present.  It  is 
this :  the  first  section  of  his  substitute  is  so  drawn  that  it 
does  not  assume  of  itself  that  the  Congress  of  the  United 
.States  clothes  the  Executive  with  power  to  suspend  the  writ. 
It  does  not  assume  to  determine  whether  his  authority  to 
suspend  the  v/rit  in  cases  of  invasion  or  insurrection  is  derived 
from  the  act  of  Congress  which  we  now  pass,  or  is  derived 
from  the  Constitution.  ...  It  does  not  assume  to  say 
that  'the  President  is  hereby  authorized  to  do  it ;'  and  there- 
fore those  persons  who  conscientiously  maintain  that  under 
the  Constitution  the  President  is  clothed  with  power  without 
any  legislation  of  Congress,  can  vote  for  this  section  upon  the 
ground  that  this  section  is  merely  declaratory  of  a  power 
which  inheres  in  him  under  the  Constitution  itself ;  and  those 
who  maintain  that  it  is  to  be  derived  from  an  act  of  Congress 
can  sustain  this  section  upon  the  ground  that  it  is  an  enacting 
clause  which  gives  him  the  power. "^"  Trumbull  himself  con- 
ceded the  "double"  interpretation :  "If  ever  there  was  an 
occasion  to  suspend  the  writ  of  habeas  corpus  in  case  of  re- 
bellion, surely  that  occasion  exists  now;  and  I  am  for  giving 
that  authority,  for  settling  this  mooted  question,  for  it  exists 
somewhere,  either  in  the  Executive  or  Congress,  one  or  the 
other;  and  those  of  us  who  believe  that  Congress  possesses 
the  power  can  vote  for  the  bill  granting  it ;  and  those  who  be- 
lieve the  Executive  has  it,  it  seems  to  me,  cannot  object  to  the 
declaratory  act  at  any  rate.**  Bayard  spoke  somewhat  sharply 
of  the  "avowal  of  the  design  to  pass  a  law  for  the  pur- 
pose of  leaving  it  so  ambiguous  that  men  of  different  minds 
may  unite  in  its  passage,"*^  but  although  the  avowal  was  new, 
still  the  chief  difference  between  this  clause  of  the  bill  and  the 
corresponding  clauses  of  its  predecessors  was  not  the  am- 
biguity, but  the  cleverness,  the  perfection,  so  to  say,  of  the 


"  Glohe,  3d  S.  37th  Cong.  p.  1092.     See  also  pp.  1093,  1194. 
**IMd.  p.  1186. 
*'Ibid.  p.  1094. 


[45] 


258  BULLETIN    OF   THE    UNIVERSITY    OF    WISCONSIN. 

ambiguity.  The  designed  and  confessed  ambiguity  of  the 
clause  is  indubitable,  and  it  is  impossible  to  maintain  that 
those  who  voted  for  the  bill  thereby  condemned  Presidential 
suspension  as  illegitimate.^'^ 

Trumbull's  conviction  that  the  "mooted  question"  should 
be  settled  was  shared  by  partisans  of  Presidential  suspension. 
Howard,  for  example,  who  ultimately  voted  for  the  bill,  said 
emphatically :  "But,  sir,  if  I  vote  for  any  measure  purport- 
ing to  give  to  the  President  of  the  United  States  a  modified 
authority  to  suspend  ...  I  shall  do  so,  as  the  lawyers 
say,  pfotestando.  I  shall  do  it  under  a  protest  that  the  Presi- 
dent of  the  United  States,  upon  a  fair  construction  of  the 
Constitution,  is  already  vested  by  the  instrument  with  full 
authority  to  suspend.  .  .  I  am  anxious  to  avoid,  if  we 
can  avoid,  the  setting  of  a  precedent  which  shall  in  the  future 
look  even  to  a  divesting  of  the  power  of  the  Executive  of  this 
important  authority.  Still,  I  may,  as  I  have  observed,  be  in- 
duced to  yield  my  opinions  for  the  purpose  of  conciliation  and 
harmony,  and  to  vote  for  some  measure  that  may  be  thought 
to  quiet  alarm,  however  unfounded  the  alarm  may  be."*''" 
Doolittle's  amplification  of  this  last  thought  is  admirable : 
"Mr.  President,  my  opinion  is  this:  whether  the  power  is  de- 
rived from  the  Constitution  or  derived  from  the  act  of  Con- 
gress to  suspend  the  writ,  it  is  the  best  policy  to  have  it  de- 
clared by  Congress  that  the  power  exists  either  under  the  Con- 
stitution or  under  the  act  of  Congress.  .  .  We  know  very 
well  that  the  people  of  the  United  States  are  so  familiar  with 
these  terms,  *be  it  enacted,'  which  are  used  in  the  passage  of 
laws  by  their  representatives,  whom  they  have  chosen,  who 
speak  their  own  voice,  who  legislate  for  them,  who  declare 
the  popular  Avill,  which,  as  our  ancestors  maintained,  is  to 
them   the  voice  of  God,  that  they  submit  to   an   enactment. 


*"  This  was  asserted  by  Bayard  and  Saulsbury,  for  example.  Globe,  3d  S. 
37th  Cong.  pp.   1094,  1204. 

"Ihid.  p.  1187.  Cf.  George  Bancroft's  Interesting  idea  of  the  value  of  sucb 
a  precedent,  in  his  letter  to  Lincoln,  February,  186.3  :  "For  one.  though  I  think 
your  position  perfectly  safe  without  it,  I  hope  Congress  will  pass  some  bill, 
alike  for  your  protection  in  the  present  case  and  for  our  security,  should  the 
nation  ever  suffer  itself  to  elect  a  ticket  like  that  of  Breckinridge  and  Lane." 
Nicolay  and  Hay,  vol.  VIII,  p.  36,  footnote. 


[46] 


SELLEEY LINCOLN^S    SUSPENSION    OF    HABEAS    CORPUS.       259 

passed  by  their  representatives,  commencing'  'be  it  enacted,' 
as  the  IsraeHtes  of  old  would  submit  to  a  'thus  saith  the  Lord.' 
But,  sir,  when  a  thing  is  assumed  to  be  done  by  the  order  of 
any  one  individual,  the  Secretary  of  War  or  the  President, 
their  jealousy  of  despotic  power  exercised  by  an  individual  is 
such,  that  although  he  may  be  acting  within  his  clear  con- 
stitutional power,  the  people,  perhaps,  are  less  likely  to 
acquiesce  in  an  order  of  the  War  Department  or  an  order  of 
the  President  than  they  are  to  acquiesce  in  an  enactment  of 
Congress."*^ 

The  propositions  embodied  in  the  last  two  sections  of 
Trumbull's  substitute  bill  were  not  looked  upon  with  un- 
mixed favor  by  the  majority  of  the  Republicans.  There  was 
a  feeling  that  political  prisoners  might  secure  their  liberation 
too  quickly  for  the  good  of  the  country.^''  February  23,  when 
the  passage  of  the  bill  seemed  imminent,  Collamer  intervened 
and  made  a  strong  and  determined  attack  upon  the  second  and 
third  sections :  "The  first  section  authorizes  the  President  to 
suspend  the  habeas  corpus:  [A  little  later  he  employed  this 
phraseology :  "You  authorize  or  declare,  if  you  choose  to 
use  that  word,  that  the  President  has  the  power  to  suspend  the 
habeas  corpus'']  ;  which,  I  take  it,  if  it  means  anything,  means 
that  he  may  hold  persons  in  prison,  in  arrest,  without  being 
interfered  with  by  any  attempt  of  the  courts  to  set  them  at 
liberty.  .  .  After  thvxs  authorizing  him  to  suspend  the 
habeas  corpus,  the  second  section  goes  on  to  provide  that  the 
persons  who  are  arrested  and  imprisoned  shall  be  brought 
before  the  courts,  and,  if  not  indicted,  discharged.  The  third 
section  provides  that  they  may  be  brought  before  a  judge  at 
any  time  after  twenty  days.  .  .  This  seems  to  imply  that 
nobody  is  to  be  arrested  unless  they  are  persons  guilty  of 
some  crime  for  which  they  can  be  indicted.  .  .  It  seems 
to  me  that  the  second  and  third  sections  are  utterly  incon- 
sistent with   the   first.     The  first  section   authorizes  the   sus- 


*8  Gloie,  3d  S.  37th  Cong.  p.  1092. 

"This   was   expressed    by    Wilson,    January    9,    1863,    apropos    of    House    Bill 
No.   362  :    "I  do  not  know  that  I  have  any  anxiety  to  try  these  prisoners 
and  I  want  them  tried  in  the  manner   in   which  the  Government   sees   fit   to  do 
it."     Ibid.  p.  204. 


[4Y] 


260  BULLETIN    OF   THE    UNIVERSITY   OF   WISCONSIN. 

pension  of  habeas  corpus,  so  that  the  courts  and  judges  can- 
not reHeve  the  man ;  the  second  and  third  sections  provide 
that  they  shall  relieve  the  man."^°  The  mantle  worn  by- 
Howe  on  a  similar  occasion  in  the  second  session  seems  now 
to  have  rested  on  Collamer's  shoulders.^^ 

Trumbull  used  all  his  skill  of  argument  and  persuasion  to 
meet  this  attack,  pointed  out  that  no  one  could  be  liberated 
except  on  conditions,  and  asked  Collamer  if  he  wanted  the 
WTit  suspended  forever/-  Collamer  pushed  the  attack  home, 
and  his  motion  to  strike  out  the  last  two  sections  would  have 
succeeded  had  not  the  Democrats  and  Unionists  rallied  to  the 
assistance  of  Trumbull.  The  motion  failed  by  the  close  vote 
of  18  to  20.  Sixteen  of  the  18  were  Republicans;  the  other 
tw^o,  Wall  and  Willey.  subsequently  voted  against  the  bill. 
Only  nine  of  the  20  were  Republicans.^^ 

The  substitute  bill,  fortified  by  a  number  of  minor  amend- 
ments,^'' was  finally  passed,  February  23,  1863,  by  a  practically 
party  vote  of  24  to  13,  Hicks,  usually  an  Administration  man. 
being  the  only  non-Republican  to  vote  for  it  and  Lane  of 
Indiana  the  only  Republican  to  vote  against  it.^^  The  title 
of  the  bill  was  amended  to  read,  "An  act  to  provide  for  sus- 
pending the  privilege  of  the  writ  of  habeas  corpus,  for  the  dis- 
charge of  State  prisoners  and  others,  and  to  authorize  taking 
b)ail  in  certain  cases. ''"'^  The  bill — House  Bill  No.  362  as 
amended  by  the  Senate — was  returned  to  the  House  February 
2-1:.^'  It  did  not.  however,  become  the  subject  of  direct  action 
in   the   Flouse,  but   was  considered  onlv  so   far   as   it  was  em- 


"^  Glohe,  3d  S.  37th  Cong.  pp.  1205-1206. 

"  See   above,    p.    243. 

^'-Glohe,  3d   R.   37tli  Cong.  pp.    1206-1207. 

^^Ibi^l.   p.    1207. 

^'  The  chief  change  in  the  first  section  was  the  elision  of  "by  proclamation." 
See  text  of  bill  as  passed,  below,   pp.   274-277. 

"YEAS — Anthony.  Chandler,  Clark.  Doolittle.  Fessenden.  Foot.  Foster, 
Grimes,  Harlan,  Harris,  Hicks.  Howe,  King.  Lane  of  Kansas,  Morrill,  Pome- 
roy,  Sumner,  Ten  Eyck.  Trumbull,  Wade,  Wilkinson,  Wilmot,  and  Wilson  of 
Massachusetts. 

NAYS — Carlile,  Henderson,  Kennedy,  Lane  of  Indiana,  Latham,  Powell, 
Rice,  Richardson,  Saulsbury,  Turpie,  Wall,  Willey,  and  WJlson  of  Missouri. 
Ihid.  p.  1208. 

^"Ibid.     For  text  of  bill  see  below,  pp.   274-277. 

^-' Ibid,  p.  1249. 


[48] 


SELLEKY — Lincoln's  suspension  of  habeas  corpus.     261 

bodied  in  a  Committee  of  Conference  bill  framed  to  reconcile 
the  conflicting  views  of  the  two  chambers  upon  House  Bill 
No.  591. 

The  Senate's  substitute  for  Stevens's  House  Bill  No.  591 
had  been  announced  to  the  House  January  28,  1863 — the  day 
after  its  passage  by  the  Senate — and  was  taken  from  the 
Speaker's  table  February  12.^^  It  received  a  brief  and  charac- 
teristic greeting  from  Stevens:  "I  hope  that  we  shall  non- 
concur and  refer  the  matter  to  a  committee  of  conference.""* 
The  measure  was  debated  from  time  to  time  in  a  rambling: 
discussion  in  which  the  Democrats  4id  most  of  the  talking 
and  thrashed  the  old  wheatless  straw.  Stevens  closed  the 
debate,  February  19,  by  asking  the  House  to  non-concur. 
The  House  non-concurred.  111  to  35,  and  appointed  its  com- 
mittee members.®*^  They  were  Stevens,  Bingham  and  Pendle- 
ton. The  Senate  members  of  the  committee  were  Trumbull, 
CoUamer  and  Willey.®^  All  save  Willey  had  been  prominent 
in  habeas  corpus  debates. 

The  report  of  the  Committee  of  Conference  was  presented 
to  the  House  February  27.^-  After  considerable  wrangling 
it  was  agreed  that  Saturday  evening.  February  28,  should  be 
given  over  to  general  debate  and  that  the  vote  should  be 
taken  Monday,  March  2.*'^  The  opportunity  to  make  "cam- 
paign" speeches  was  so  tempting  that  the  evening  of  Febru- 
ary 28  passed  without  any  discussion  of  the  bill.  March  2, 
about  one  o'clock  P.  M.,  the  report  of  the  Committee  of  Con- 
ference was  agreed  to,  99  to  44.*^*  The  fight  was  obviously 
left  for  the  Senate. 

Immediately  after  the  reading  of  the  House  message  an- 
nouncing the  acceptance  of  the  report  of  the  committee 
Trumbull  submitted  the  report  to  the  Senate.®'  He  explained, 
not  without  a  trace  of  disingenuousness,  the  make-up  of  the 


"G/obe,  3d  S.  37th  Cong.  pp.  572,  916. 

^»Ibid.   p.  916. 

«»/5id.  p.  1107. 

<^JMd.   p.  1119. 

'^Ibid.   p.  1354. 

«3/6iVf.  p.  1359. 

<^Ibid.   p.  1479. 

«7bi(i.  p.  1435. 

4  [49] 


262  BULLETIN    OF   THE    UNIVEESITY   OF    WISCONSIN. 

Conference  bill.*'^  "I  will  state,"  he  said,  in  his  introductory 
remarks,  "for  the  information  of  the  Senate,  that  the  report 
embraces  nothing  but  the  subject  matter  of  the  bill  which 
passed  the  House  of  Representatives  [Bill  No.  591],  and  the 
amendments  which  passed  the  Senate."''"  A  comparison  of 
texts  shows  that  the  Conference  measure  was  practically  a 
fusion  of  the  Senate's  substitutes  for  House  bills  362  and 
591.''^  Sections  one,  two  and  three  of  the  Conference  bill — 
the  Habeas  Corpus  Act  of  March  3,  18G3 — are  almost  an  exact 
copy  of  the  three  sections  of  the  former,  and  in  the  order 
named  f^  sections  five,  six  and  seven  are  identical  with  sec- 
tions one,  three  and  four  of  the  latter.  Section  four  of  the 
Conference  bill  differs  in  phraseology  from  section  two  of  the 
Senate's  substitute  for  591  but  its  practical  effect  is  much  the 
same. 

The  report  of  the  Committee  of  Conference  was  received  by 
the  opposition  senators  with  marked  signs  of  disapproval. 
They  resorted  to  confessed  filibusterism  to  prevent  its  ac- 
ceptance. By  this  means  they  delayed  action  until  close  to 
live  o'clock  A.  M.  of  the  last  night  of  the  session,  and  it  was 
only  by  virtue  of  what  under  the  circumstances  may  be  called 
legitimate  jockeying — to  which  the  presiding  officer.  Senator 
Pomeroy,  lent  naive  aid — that  the  majority  secured  the  con- 
currence of  the  Senate  in  the  report.'^'^  The  next  morning  the 
opposition  senators  protested  against  the  tactics  used  against 
them  and  desired  to  have  an  opportunity  to  move  to  recon- 
sider the  vote.  Doolittle  suggested  that  the  vote  on  the 
motion  to  send  to  the  House  for  the  report  should  be  con- 
sidered a  test  one,  and  therefore  asked  the  yeas  and  navs.'^^ 


«^01oie,  3d  S.  37th  Cong.  pp.   143&-1437. 

«'/Wd.  p.  1436. 

•*  See  Appendices,  below. 

"'The  only  change  in  the  first  section  is  the  omission  of  a  tautological  "or." 

'"'Glohe,  3d  S.  37th  Cong.  pp.  1460-1477.  The  tactics  employed  were  clever. 
After  considerable  maneuvering  around  motions  of  various  kinds,  Pessenden 
called  for  the  yeas  and  nays  on  a  motion  to  adjourn.  The  vote  was  yeas  4, 
nays  33.  Immediately  the  presiding  officer  said  :  "The  question  is  on  concur- 
ring in  the  report  of  the  committee  of  conference.  Those  in  favor  of  concurring 
in  the  report  will  say  'aye,'  those  opposed  'no.'  The  ayes  have  it.  It  is  a  vote. 
The  report  is  concurred  in."  Then  Trumbull :  "I  move  that  the  Senate  now 
proceed  to  the  consideration  of  House  bill  No.   599." — Protests.     IMd.  p.  1477. 

^^liid.  pp.  1489-1494. 

[50]  ■    .    -     \ 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     263 

It  would  seem  that  the  vote  was  so  regarded.  At  any  rate 
the  alignment  of  the  senators  on  the  vote  was  what  might 
have  been  predicted  by  one  familiar  with  the  previous  votes 
on  the  habeas  corpus  question.  The  vote  stood  13  to  25.''^ 
So  the  return  of  the  report  was  not  requested.  The  bill  was 
signed  by  the  President  the  same  day,  and  bears  the  title  "An 
Act  relating  to  Habeas  Corpus,  and  regulating  Judicial  Pro- 
ceedings in  certain  cases. "'^^ 


"YEAS-  Bayard,  Carlile,  Davis,  Henderson,  Latham,  Nesmlth,  Powell,  Rice, 
Richardson,   Saulsbury,  Turpie,  Willey,  and  Wilson  of  Missouri. 

NAYS-  Anthony,  Chandler,  Clark,  Dixon,  Doolittle,  Foster,  Grimes,  Harlan, 
Harris,  Hicks,  Howard,  Howe,  King,  Lane  of  Indiana,  Lane  of  Kansas,  Morrill, 
Pomeroy,  Sherman,  Sumner,  Ten  Eyck,  Trumbull,  Wade,  Wilkinson,  Wilmot 
and  Wilson  of  Massachusetts.     Olobe,   3d   S.   37th  Cong.  p.   1494. 

"/bid.   Appendix,    p.   217.      For    text,    see  below,    pp.    278-283. 


[51] 


264  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN, 


CHAPTER  V. 

CONCLUSIONS. 

It  is  now  possible  to  draw  some  definite  conclusions  as  to 
the  nature  of  the  precedent  made  by  Congress  in  the  years 
1861-1863. 

Congress  did  not,  by  passing  the  act  of  March  3,  1863,  de- 
clare   by    implication    or    otherwise    the    illegality    of    Presi- 
dential   suspension.     The    authors    or    sponsors   of   the    bills 
which  were  ultimately  merged  into  the  act  were  careful  to 
assert — and    the   bills    themselves    bear    out   the    assertion — that 
the  question  of  the  rightfulness  of  the   President's  action  was 
not    at    issue.     The    first    section    of    the    act.    in    phraseology 
which  is  almost  unique,  although  it  has  been  little  remarked, 
enacts  "That,  during  the  present  rebellion,  the  President     .     .     . 
whenever,  in  his  judgment,  the  public  safety  may  require  it,  is 
authorized  to  suspend.     .     .     And  whenever  and  wherever  the 
said  privilege  shall  be   suspended,   as  aforesaid,  no  military  or 
other  officer  shall  be  compelled     ...     to  return  the  body 
of  any  person  or  persons  detained  by  him  by  authority  of  the 
President;  but  upon  the  certificate,   under  oath,   of  the  officer 
that  such  person  is  detained  by  him  as  a  prisoner 
under  authority   of  the  President,   further   proceedings     .     .     . 
shall  be  suspended     ...     so  long  as  said  suspension  by  the 
President  shall  remain  in  force,  and  said  rebellion  continue."^ 
This  phraseology  is  not  accidental ;  it  is  the  product  of  a  pro- 
longed   process    of    refinement,    commencing    July  6,    1861,    in 
which  the  dominating  motive  was  unquestionably  a  desire  not 
to  deny  the  President's  right  to  suspend.     The  long  acquies- 
cence of  Congress  in  the  President's  suspension  of  the  privi- 
lege  of   the    writ    coupled    with    its    formal    enactment   in    the 


'  Italics  are  not  in  the  original.     No  reference  was  made,  in  any  of  the  de- 
bates, to  the  possible  significance  of  the  words  "during  the  present  rebellion." 

[52] 


SELLEEY — Lincoln's  suspension  of  habeas  corpus.     265 

Habeas  Corpus  Act  that  the  President  is  authorized  to  sus- 
pend were,  in  truth,  recognition  by  Congress  of  the  Presi- 
dent's right  to  suspend.- 

On  the  other  hand,  Congress,  in  passing  the  act,  asserted 
its  right  to  take  control  of  the  suspension  of  the  privilege  of 
the  writ.  If  the  first  section  was  a  recognition  by  Congress 
of  the  legality  of  Presidential  suspension,  the  remainder  of 
the  act^  was  an  assertion  of  the  jurisdiction  of  Congress  over 
the  matter  of  habeas  corpus  suspension.*  It  is  not  possible 
to  entertain  the  theory  that  Congress,  by  the  act,  "simply 
meant  to  declare  what  the  measure  of  authority  was  in  the 
President  under  the  Constitution  and  independent  of  the  act.'*' 
Doolittle  told  the  naked  truth  when  he  admitted  that,  "taking 
the  whole  thing  together,"  the  act  provided  for  "a  modified 
suspension  of  the  writ  of  habeas  corpus."^ 

The  action  of  Congress,  the  only  possible  competitor  of  the 
President,  in  recognizing  his  right  to  suspend,  and  in  the  same 
act  assuming  control  of  the  suspension,  perplexed  some  of  the 
champions  of  the  President's  exclusive  right  to  suspend. 
Horace  Binney,  the  most  redoubtable  of  these,  said  in  a  letter 
to  a  friend :  "As  to  the  Habeas  Corpus,  I  will  continue  to 
think  about  it.  as  I  have  done.     One  of  my  difficulties  is  that 

Congress  have  bed d  the  subject  by  their  Act,  having  first, 

in  new  and  unusual  language  for  an  Act  of  Congress,  asserted 
or  declared  the  President's  right  in  the  strongest  and  most  ex- 


*  Cf.  Secretary  Chase's  statement  of  September  15,  1863 :  "You,  Mr.  Pres- 
ident, have  believed  that  you  have  the  power  to  suspend  the  writ  of  habeas 
corpus  without  being  authorized  by  Congress,  and  in  some  cases  have  acted  on 
this  belief.  After  much  consideration  I  have  come  to  the  conclusion  that  your 
opinion  and  action  are  sanctioned  by  the  constitution.  Whatever  doubt  there 
may  have  been  as  to  your  power  to  suspend  the  writ,  it  has  been  removed  by 
express  legislation.  The  act  of  3d  March  last,  approved  by  you,  authorizes 
you  to  suspend  the  writ  in  any  case  during  the  existing  rebellion,  when  in 
your  judgment  the  public  safety   may   require  it."     Warden's   Chase,  p.   545. 

^  As  already  shown,  the  first  section  itself  may  be  interpreted  as  authorizing 
suspension  by  the  President.  See  above,  p.  256.  See  also  below,  pp.  266-267, 
footnote. 

*It  should  be  clear  to  the  reader  that  the  evidence  presented  in  this  essay 
is  not  believed  to  affect  the  right,  but  only  the  exclusive  right,  of  Congress  to 
suspend.     Cf.  Dunning,  Essays  on  the  Civil  War  and  Reconstruction,  pp.  42-43. 

5  Conjectural  interpretation  of  Howe,  February  19,  1863.  Globe,  3d  S.  .^Tth 
Cong.,   p.   1093. 

"Ibid.   p.    1207.     Cf.   ex  parte  Milligan,   4    Waliace,  p.   4. 


[53] 


266  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

plicit  terms,  and  then  proceeded  to  regulate  partially  his  pro- 
ceedings, as  if  the  power  was  their  own.  If  I  could  make  an 
argument  to  justify  this,  I  should  already  have  tried  it."^  In 
spite  of  this  natural  perplexity  of  a  lawyer — a  great  lawyer — 
it  must  be  said  that  the  solution  of  the  habeas  corpus  prob- 
lem offered  by  the  act  of  March  3,  1863,  was  practical  and  was 
well-fitted  to  the  exigencies  of  rebellion  or  invasion  and  to  the 
susceptibilities  of  a  self-governing  people.  It  was  in  accord 
with  President  Lincoln's  initial  opinion,  wherein  he  had  not 
claimed  an  exclusive  right  to  suspend  f  it  satisfied  the  general 
plea  of  Henry  Wilson,  who  had  introduced  the  first  habeas 
corpus  measure.  In  his  fiery  speech  of  February  21,  1863, 
Wilson  said:  "Aly  judgment  tells  me  that  the  President  of 
the  United  States  has  the  power  in  time  of  insurrection  or  re- 
bellion to  suspend  the  writ  of  habeas  corpus.  The  power  by 
the  Constitution  is  confided  to  the  Government,  to  the  Presi- 
dent or  Congress,  or  both.  If  there  is  no  law  upon  the  stat- 
ute-book, and  insurrection  or  revolution  is  sweeping  over  the 
land,  and  Congress  is  not  in  session,  has  not  the  President  of 
the  United  States,  in  an  hour  like  that,  the  power  to  suspend 
the  writ  of  habeas  corpus?  If  he  has  not  that  power,  he  ought 
to  have  it."'*  Finally  it  may  be  recalled,  even  at  the  risk  of  a 
petitio  principii,  that  this  solution  satisfied  a  majority  of  each 
House  of  Congress  and  received  the  approval  of  the  President, 
March  3,  1863. 

The  importance  of  the  precedent  made  in  1861-1863  is  ob- 
vious. It  is,  from  the  de  facto  standpoint,  the  strongest  prece- 
dent there  is.  The  privilege  of  the  writ  of  habeas  corpus 
had  never  been  suspended,  since  the  Constitution  went  into 
force,   until    ISei.^*^     Constitutional   theory   and   legal   precedent 


'C.   C.  Binney's  Binney,  pp.  388-389. 

5  "Now  It  is  insisted  that  Congress,  and  not  the  executive,  is  vested  with 
this  power.  But  the  Constitution  is  silent  as  to  which  or  who  is  to  exercise 
the  power,  and  a>s  the  provision  was  plainly  made  for  a  dangerous  emergency, 
it  cannot  be  believed  the  framers  of  the  instrument  intended  that  in  every 
case  the  danger  should  run  its  course  until  Congress  could  be  called  together, 
the  very  assembling  of  which  might  be  prevented,  as  was  intended  in  this  case, 
by  the  rebellion."     See  larger   extract  from   the   message,   above,   pp.  221-222. 

0  Globe,  3d  S.  37th  Cong.  p.  1164. 

""'The  privilege  of  this  great  writ  had  never  before  been  withheld  from  the 
citizen." — The  Court,  in  ex  parte  Milligan,  4  Wallace,  p.  115. 


[54] 


SELLERY — Lincoln's  suspension  of  habeas  corpus.     267 

may  find  difficulty  in  fitting  this  historical  precedent  into  pre- 
existing categories/^  but  theory  and  legal  precedent,  however 
stubborn  and  entrenched,  must  sooner  or  later  yield  to  fact. 
Even  the  Supreme  Court  of  the  United  States  could  not  ex- 
pect acquiescence  in  a  decision  against  Congress  and  the 
President  on  the  question  of  the  right  of  the  President  to 
exercise  a  power  so  vital  to  the  safety  of  the  State  as  the 
power  to  suspend  the  privilege  of  the  writ  of  habeas  corpus. 
Taney's  Circuit  Court  decision^-  was  powerless  against  the 
Executive.  The  Supreme  Court  has  not  been  placed  in  a  posi- 
tion which  has  required  it  to  pass  upon  the  delicate  question 
of  the  legality  of  suspension  by  the  President.^^  But  if  the 
Court  ever  has  to  pass  upon  the  question,  it  is  reasonable  to 
anticipate  that  it  is  likely  to  attach  great  weight  to  the  histori- 
cal precedent  of  1861-1863.1* 


"  If  it  were  the  correct  interpretation  of  the  evidence  submitted  in  the  first 
four  chapters  of  this  essay  that  the  President,  in  suspending,  merely  antici- 
pates Congressional  action,  in  default  of  which  his  suspension  would  be  illegal, 
then  the  legal  difficulties  would  vanish.  In  Brown  vs.  United  States,  1814, 
Story  said  in  his  dissenting  opinion  :  "I  am  perfectly  satisfied  that  the  posi- 
tion is  well-founded,  that  no  subject  can  legally  commit  hostilities,  or  capture 
property  of  an  enemy,  when,  either  expressly  or  constructively,  the  sovereign 
has  prohibited  it.  But  suppose  he  does,  I  would  ask  if  the  sovereign  may  not 
ratify  his  proceedings ;  and  thus,  by  a  retroactive  operation  give  validity  to 
them?  Of  this  there  seems  to  be  no  legal  doubt."  8  Cranch,  p.  133.  In  the 
Prize  Cases,  1862,  the  court  quoted  this  dictum  with  approval,  although  with 
little  regard  for  the  sacredness  of  quotation  marks,  but  at  the  same  time  sug- 
gested that  the  legality  of  such  retroactive  legislation  might  be  questionable 
in  a  criminal  case.  2  Black,  pp.  670,  671.  Finally  the  Court,  in  1883,  in 
Mitchell  vs.  Clark,  a  case  which  involved  the  construction  of  the  Habeas 
Corpus  Act,  swept  aside  the  doubt  expressed  in  1862.  Here  the  Court  said : 
"That  an  act  passed  after  the  event,  which  in  effect  ratifies  what  has  been 
done,  and  declares  that  no  suit  shall  be  sustained  against  the  party  acting 
under  color  of  authority,  is  valid,  so  far  as  Congress  could  have  conferred  such 
authority  before,  admits  of  no  reasouable  doubt.  These  are  ordinary  acts  of 
indemnity  passed  by  all  governments  when  the  occasion  requires  it."  110 
U.  8.  p.  640.  If  this  doctrine  were  fully  applicable  to  suspension  of  habeas 
corpus  by  the  President  then  the  American  practice  would  be  substantially  the 
same  as  the  British  has  been  under  Cabinet  government,  with  the  grave 
difference  that  the  American  Executive  could  not  be  certain  of  legislative  in- 
demnity, if  Congress  were  hostile  to  him. 

"Ex  parte  Merryman. 

13  In  ex  parte  Milligan,  the  eause  celebre  of  1866,  the  question  was  raised 
and  argued  by  counsel,  but  the  Court  refrained  from  expressing  itself  upon  it, 
taking  it  as  undisputed  that  the  act  of  March  3,  1863,  gave  the  President  au- 
thority to  suspend.     4  Wallace,  pp.  2-142. 

"It  is  not  believed  that  the  validity  of  these  conclusions  (chapter  V)  is  af- 
fected by  the  very  perfunctory  obedience  paid  by  the  executive  authorities  to 
the  requirements  of  the  Habeas   Corpus  Act.     The  President  acknowledged  the 

[55] 


268  EULLETIN    OF   THE    UNIVERSITY    OF    WISCONSIN. 


APPENDIX  I. 

HABEAS  CORPUS  BILLS  PASSED  BY  EITHER 

HOUSE,  1861-1863. 

BILL  NO.   362,  PASSED  BY  THE   HOUSE,   JULY   8,   1863. 

An  Act  to  provide  for  the  discharge  of  State  prisoners  and 
others,  and  to  authorize  the  judges  of  the  United  States  courts 
to  take  bail  or  recognizance  to  secure  the  trial  of  the  same. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
Secretary  of  State  and  the  Secretary  of  War  be,  and  they  are 
hereby,  directed  forthwith  or  as  soon  as  practicable  to  furnish 
to  the  judges  of  the  circuit  and  district  courts  of  the  United 
States  and  of  the  District  of  Columbia  a  list  of  the  names  of 
all  persons,  citizens   of   States   in   which  the   administration   of 


obligation  of  the  act  by  approving  it,  and  liis  Secretary  of  War,  Stanton,  by 
order  of  March  23,  1863,  directed  Judge-Advocate-General  Holt  to  see  that  the 
provisions  of  the  act  were  observed.  121  War  Records,  p.  255.  Holt  construed 
the  act  most  narrowly,  and  only  once  between  March,  1863  and  February, 
1865 — in  the  spring  of  1863 — did  he  furnish  to  the  courts  the  lists  required 
by  the  act.  118  War  Records,  pp.  765-766;  121  War  Records,  pp.  255-257. 
February  18,  1865,  Stanton  oflBcially  reported  to  the  Senate  that  he  had  "no 
knowledge  or  information  of  any  other  persons  held  as  state  or  political  pris- 
oners of  the  United  States  by  order  or  authority  of  the  President  of  the  United 
States  or  of  the  Secretary  of  State,  or  of  the  Secretary  of  War,  in  any  fort, 
arsenal,  or  other  place,  since  the  date  of  the  report  of  the  JudgeAdvocate-Gen- 
eral"  [June  9,  1863].  This  is  an  astounding  statement.  September  15,  1863, 
President  Lincoln  and  the  other  departmental  heads  were,  according  to  Sec- 
retary Chase,  unfamiliar  with  the  terms  of  the  act.  Warden's  Chase,  p.  546. 
The  President's  suspending  proclamation  of  September  24,  1863,  recites  the 
act  of  March  3,  1863,  but  not  in  a  way  which  proves  that  the  Presideut  relied 
upon  it  as  his  authority  to  suspend.  Lincoln's  Works,  vol.  II,  pp.  406-407. 
The  same  is  true  of  the  suspending  proclamation  of  July  5,  1864.  IMd,  pp, 
541-543.  Cf.  Lincoln's  letter  to  M.  Birchard  and  others,  June  26,  1863.  Ibid. 
p.    361.     Some  political   prisoners   who  sought  release  under   the   provisions  of 


[56] 


SELLERY — Lincoln's  suspension  of  habeas  cokfus.     269 

the  laws  has  continued  unimpaired  in  the  said  Federal  courts, 
who  are  now,  or  may  hereafter  be  held,  as  prisoners  of  the 
United  States  in  any  fort,  arsenal,  or  other  place,  as  State  or 
political  prisoners,  or  otherwise  than  as  prisoners  of  war;  the 
said  list  to  contain  the  names  of  all  such  who  reside  in  the  re- 
spective jurisdictions  of  said  judges,  or  who  may  be  deemed 
by  the  said  Secretaries,  or  either  of  them,  to  have  violated  any 
law  of  the  United  States  in  any  of  said  jurisdictions,  and  also 
the  date  of  each  arrest.  And  in  all  cases  where  a  grand  jury 
having  attended  said  courts,  or  either  of  them  having  juris- 
diction in  the  premises,  since  the  arrest  of  said  persons,  has 
terminated  its  session  without  finding  an  indictment,  or  pre- 
sentment, or  other  proceeding  against  such  persons,  and  in 
cases  hereinafter  provided  for,  it  shall  be  the  duty  of  said 
judges  forthwith  to  order  the  discharge  of  such  prisoner  from 
said  imprisonment,  and  every  officer  of  the  United  States  hav- 
ing custody  of  such  prisoner  is  hereby  directed  immediately 
to  obey  and  execute  said  judge's  order,  and  in  case  he  shall 
delay  or  refuse  so  to  do,  he  shall  be  subject  to  indictment 
for  a  misdemeanor,  and  be  punished  by  a  fine  of  not  less  than 
$500,  and  imprisonment  in  the  common  jail  for  a  period  not 
less  than  six  months,  in  the  discretion  of  the  court. 

Sec.  2.  And  he  it  further  enacted,  That  in  case  any  of  such  pri- 
soners shall  be    under  indictment   or  presentment  for  any  off- 

the  act  were  spirited  away  from  the  jurisdiction  of  the  court.  Appleton's 
American  Annual  Cyclopcedia,  1864,  pp.  450,  4,53  ;  1865,  p.  414.  In  1865,  the 
President  twice  refused  to  obey  the  requirements  of  the  second  section  of  the 
act.  and  forbade  the  officers  having  the  custody  of  the  prisoners  to  surrender 
them  to  the  court  [Supreme  Court  of  the  District  of  Columbia].  The  Pres- 
ident endorsed  on  the  writ  of  habeas  corpus  sued  out  by  one  of  them :  "The 
within  named  John  Dugan  was  arrested  on  and  is  imprisoned  by  my  authority. 
This  writ  of  liaheas  corpus  is  suspended,  and  the  officer  having  Dugan  in  cus- 
tody is  directed  not  to  produce  his  body,  but  to  hold  him  in  custody  until 
further  order,  giving  this  order  on  your  return  to  the  Court."  The  writ  for 
the  other,  C.  V.  Hogan,  was  similarly  endorsed.  In  both  cases  the  court  held 
that  the  President's  constitutional  authority  to  suspend  was  not  restricted  by 
the  act — that  the  act  was  virtually  null.  6  /*.  C.  pp.  131-148 ;  MePherson  : 
History  of  the  Rebellion,  p.  562.  No  detailed  investigation  of  executive  viola- 
tions of  the  act  has  been  attempted,  but  the  Congressional  debates  of  1864-1865 
leave  little  doubt  as  to  the  conclusions  which  such  an  investigation  would  com- 
pel. They  reveal  sharp  and  sweeping  condemnations  of  the  executive  author- 
ities for  their  disregard  of  the  act,  made  not  only  by  political  enemies  of  the 
Administration,  but  by  such  warm  friends  as  Lyman  Trumbull,  Henry  Winter 
Davis,  Reverdy  Johnson  and  J.  A.  Garfield.  See  Globe,  2d  S.  38th  Cong.  pp. 
6.3.   73  ff.,  189,   255-257,,  318-320,   784,   1323-1333   and  1372-1380. 

[5Y] 


270  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

ense  against  the  laws  of  the  United  States,  and  by  existing 
laws  bail  or  a  recognizance  may  be  taken  for  the  appearance 
for  trial  of  such  person,  it  shall  be  the  duty  of  said  judges  at 
once  to  discharge  such  person  upon  bail  or  recognizance  for 
trial  as  aforesaid.  And  in  case  the  said  Secretaries  of  State  and 
War  shall  for  any  reason  refuse  or  omit  to  furnish  the  said 
list  within  five  days  from  and  after  the  passage  of  this  act,  any 
citizen  may,  by  a  petition  alleging  the  facts  aforesaid  touching 
any  of  the  persons  so  as  aforesaid  imprisoned,  supported  by 
the  oath  of  such  petitioner  or  any  other  credible  person,  ob- 
tain and  be  entitled  to  have  the  said  judge's  order  to  discharge 
such  prisoner:  Provided,  hotvever,  That  the  said  judge  shall  be 
satisfied  such  allegations  are  true,  and  shall  also,  in  all  cases 
included  in  this  bill,  or  if  the  public  safety  shall  require  it, 
have  pov/er  and  be  required  to  take  a  recognizance  or  bail  from 
such  prisoner  to  keep  the  peace  and  be  of  good  behavior  to- 
ward the  United  States,  and  also  to  appear  before  the  proper 
court,  if  he  shall  deem  the  same  necessary  after  due  examina- 
tion of  the  case.  And  it  shall  be  the  duty  of  the  district  attor- 
ney of  the  United  States  to  attend  at  such  examination  by  said 
judge. 

Sec.  3.  And  he  it  further  enacted,  That  it  is,  and  shall  be  law- 
ful for  the  President  of  the  United  States,  whenever,  in  his 
judgment  by  reason  of  "rebellion  or  invasion  the  public  safety 
may  require  it,"  to  suspend,  by  proclamation,  the  privilege  of 
the  writ  of  habeas  corpus  throughout  the  United  States  or  in  any 
part  thereof,  and  whenever  the  said  writ  shall  be  suspended  as 
aforesaid,  it  shall  be  unlawful  for  any  of  the  judges  of  the  several 
courts  of  the  United  States,  or  of  any  State,  to  allow  said  writ, 
anything  in  this  or  any  other  act  to  the  contrary  notwith- 
standing.i 

BILL  NO.  591,  PASSED  BY  THE  HOUSE,  DECEMBER  8,  1862. 

An  Act  to  indemnify  the  President  and  other  persons  for  sus- 
pending the  privilege  of  the  writ  of  Habeas  Corpus,  and  acts 
done  in  pursuance  thereof. 

Text  is  given  above,  p.  248. 


^  Globe,  2d  S.  37th  Cong.   pp.   3105-3106. 

[58] 


SELLERY LINCOLN^S    SUSPEXSIOX    OF    HABEAS    CORPUS,       271 


SENATE    SUBSTITUTE    FOR    BILL    NO.    591,    PASSED    BV    THE    SENATE, 

JANUARY    27,    18G3. 

I 

An    Act    to    regulate    Judicial    Proceedings    in    certain    cases 
therein  mentioned. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the   United  States  of  America  in   Congress  assembled,  That  if 
any  suit  or  prosecution,  civil  or  criminal,  has  been  or  shall  be 
commenced  in  any  State  court  against  any  officer,  civil  or  mil- 
itary, or  against  any  other  person,  for  any  arrest  or  imprison- 
ment made  or  other  trespasses  or  wrongs  done  or  committed, 
or  any  act  omitted  to  be  done,  at  any  time  during  the  present 
rebellion,   by   virtue    or   under   color   of   any   authority   derived 
from  or  exercised  by  or  under  the  President  of  the  United 
States,  or  any  act  of  Congress,  and  the  defendant  shall,  at  the 
time  of  entering  his  appearance  in  such  court,  or  if  such  ap- 
pearance  shall    have   been    entered   before   the    passage    of   this 
act,  then  at  the  next  session  of  the  court  in  which  such  suit 
or  prosecution  is  pending,  file  a  petition  stating  the  facts  and 
verified  by  affidavit  for  the  removal  of  the  cause  for  trial  at 
the  next   circuit   court   of   the   United   States,   to   be   holden   in 
the  district  where  the  suit  is  pending,  and  offer  good  and  suf- 
ficient surety   for  his  filing  in  such  court,   on  the  first  day  of 
its    session,    copies    of    such    process    and    other    proceedings 
against  him,  and  also  for  his  appearing  in  such  court  and  en- 
tering special  bail  in  the  cause,  if  special  bail  was  originally  re- 
quired therein,  it  shall  then  be  the  duty  ot  the  State  court  to 
accept  the  surety  and  proceed  no  further  in  the  cause  or  prose- 
cution, and  the  bail  that  shall  have  been  originally  taken  shall 
be  discharged.     And  such  copies  being  filed  as  aforesaid  in 
such  court  of  the  United  States,  the  cause  shall  proceed  there- 
in in  the  same  manner  as  if  it  had  been  brought  in  said  court 
by  original  process,  whatever  may  be  the  amount  in  dispute  or 
the   damages    claimed,   or   whatever    the    citizenship    of   the 
parties,    any   former   law    to   the    contrary    notwithstanding. 
And  any  attachment  of  the  goods  or  estate  of  the  defendant 
by  the  original  process   shall   hold  the  goods   or  estate   so   at- 

[59] 


272  BULLETIN    OF   THE   TJNIVEKSITY    OF   WISCOXSIN. 

tached  to  answer  the  final  judgment  in  the  same  manner  as  by 
the  laws  of  such  State  they  would  have  been  holden  to  answer 
final  judgment  had  it  been  rendered  in  the  court  in  which  the 
suit  or  prosecution  was  commenced.  And  it  shall  be  lawful 
in  any  such  action  or  prosecution  which  may  be  now  pending^ 
or  hereafter  commenced,  before  any  State  court  whatever,  for 
any  cause  aforesaid,  after  final  judgment,  for  either  party  to 
remove  and  transfer,  by  appeal,  such  case  during  the  session 
or  term  of  said  court  at  which  the  same  shall  have  taken  place^ 
from  such  court  to  the  next  circuit  court  of  the  United  States, 
to  be  held  in  the  district  in  which  such  appeal  shall  be  taken, 
in  manner  aforesaid.  And  it  shall  be  the  duty  of  the  person 
taking  such  appeal  to  produce  and  file  in  the  said  circuit  court 
attested  copies  of  the  process,  proceedings,  and  judgment  in 
such  cause;  and  it  shall  also  be  competent  for  either  party, 
within  six  months  after  the  rendition  of  a  judgment  in  any 
such  cause,  by  writ  of  error  or  other  process,  to  remove  the 
same  to  the  circuit  court  of  the  United  States  of  that  district 
in  which  such  judgment  shall  have  been  rendered ;  and  the 
said  circuit  court  shall  thereupon  proceed  to  try  and  deter- 
mine the  facts  and  the  law  in  such  action,  in  the  same  manner 
as  if  the  same  had  been  there  originally  commenced,  the 
judgment  in  such  case  notwnthstanding.  And  any  bail  which 
may  have  been  taken,  or  property  attached,  shall  be  holden  on 
the  final  judgment  of  the  said  circuit  court  in  such  action,  in 
the  same  manner  as  if  no  such  removal  and  transfer  had  been 
made,  as  aforesaid.  And  the  State  court  from  which  any  such 
action,  civil  or  criminal,  may  be  removed  and  transferred  as 
aforesaid,  upon  the  parties  giving  good  and  sufficient  security 
for  the  prosecution  thereof,  shall  allow  the  same  to  be  re- 
moved and  transferred,  and  proceed  no  further  in  the  case: 
Provided,  hozccvcr,  That  if  the  party  aforesaid  shall  fail  duly 
to  enter  the  removal  and  transfer,  as  aforesaid,  in  the  circuit 
court  of  the  United  States,  agreeably  to  this  act,  the  State 
court  by  which  judgment  shall  have  been  rendered,  and  from 
which  the  transfer  and  removal  shall  have  been  made,  as 
aforesaid,  shall  be  authorized,  on  motion  for  that  purpose,  to 
issue  execution,  and  to  carry  into  efifect  any  such  judgment, 
the  same  as  if  no  such  removal  and  transfer  had  been  made: 

[60] 


SELLEEY — Lincoln's  suspension  of  habeas  coepus.     273 

And  provided,  also,  That  no  such  appeal  or  writ  of  error  shall 
be  allowed  in  any  criminal  action  or  prosecution  where  final 
judgment  shall  have  been  rendered  in  favor  of  the  defendant 
or  respondent  by  the  State  court.  And  in  any  action  or  prose- 
cution against  any  person,  as  aforesaid,  it  shall  be  lawful  for 
such  person  to  plead  the  general  issue,  and  give  this  act  and 
any  special  matter  in  evidence.  And  if  in  any  suit  hereafter 
commenced  the  plaintiff  is  nonsuited  or  judgment  pass 
against  him,  the  defendant  shall  recover  double  costs. 

Sec.  2.  And  be  it  further  enacted,  That  if  it  shall  appear 
upon  the  trial  of  any  action  provided  for  and  mentioned  in 
the  first  section  of  this  act  that  there  was  probable  cause  for 
the  arrest,  imprisonment,  or  other  act  complained  of,  or  that 
in  making  such  arrest  or  imprisonment,  or  committing  such 
act,  the  defendant  acted  in  good  faith,  under  the  authority  or 
order  of  the  President  of  the  United  States,  or  under  an  act 
of  Congress,  then,  and  in  every  such  case,  the  foregoing  facts, 
or  either  of  them,  shall  constitute  a  full  and  complete  defence 
to  the  action ;  and  it  shall  be  the  duty  of  the  court  trying  the 
cause  so  to  instruct  the  jury,  and  that  their  finding  must  be 
accordingly. 

Sec.  3.  And  be  it  further  enacted,  That  any  suit  or  prosecu- 
tion described  in  the  first  section  of  this  act,  in  which  final 
judgment  may  be  rendered  in  the  circuit  court,  may  be  car- 
ried by  writ  of  error  to  the  Supreme  Court,  whatever  may  be 
the  amount  of  said  judgment. 

Sec.  4.  And  be  it  further  enacted,  That  no  suit  or  prosecu- 
tion, civil  or  criminal,  shall  be  maintained  for  any  arrest 
or  imprisonment  made,  or  other  trespasses  or  wrongs  done 
or  committed,  or  act  omitted  to  be  done,  at  any  time  dur- 
ing the  present  rebellion,  by  virtue  or  under  color  of  any 
authority  derived  from  or  exercised  by  or  under  the  President 
of  the  United  States,  or  by  or  under  any  act  of  Congress,  un- 
less the  same  shall  have  been  commenced  within  two  years 
next  after  such  arrest,  imprisonment,  trespass,  or  wrong  may 
have  been  done  or  committed:  Provided,  That  in  no  case 
shall  the  limitation  herein  provided  commence  to  run  until 
the  passage  of  this  act,  so  that  no  party  shall,  by  virtue  of 

[61] 


274  BULLETIN    OF   THE    UNIVERSITY    OF    WISCONSIN. 

this  act,  be  debarred  of  his  remedy  by  suit  or  prosecution  until 
two  years  from  and  after  the  passage  of  this  act. 

Sec.  5.  And  be  it  further  enacted.  That  any  person  not  in 
the  mihtary  or  naval  service,  and  not  subject  to  the  rules  and 
articles  of  war,  who  shall  be  arrested  in  any  State  or  district 
wherein  the  ordinary  process  of  the  courts  of  the  United  States 
is  not  obstructed,  for  aiding  the  present  rebellion,  or  for  ob- 
structing the  execution  of  any  iaw  or  military  order,  shall  be 
discharged  from  such  arrest,  unless,  within  thirty  days  after 
such  arrest,  the  charges  against  such  person  shall  be  reduced 
to  writing  and  filed  in  the  office  of  the  clerk  of  the  district 
court  of  the  United  States  in  the  district  in  which  such  per- 
son is  arrested.  And  it  shall  be  the  duty  of  the  judge  of  said 
court,  upon  the  application  of  such  person,  to  examine  into 
the  cause  of  such  arrest ;  and,  upon  hearing  of  such  applica- 
tion, such  judge  may  discharge  such  person,  hold  him  to  bail, 
or  dismiss  his  application,  as,  in  the  opinion  of  such  judge, 
the  public  safety  may  require.^ 

SENATE    SUBSTITUTE   FOR    BILL    NO.    362,    PASSED   BY   THE    SENATE, 

FEBRUARY  23,   1863. 

An  Act  to  provide  for  suspending  the  privilege  of  the  writ  of 
Habeas  Corpus,  for  the  discharge  of  State  prisoners  and  others, 
and  to  authorize  taking:  bail  in  certain  cases. 


^& 


Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That,  dur- 
ing the  present  rebellion,  the  President  of  the  United  States, 
whenever  in  his  judgment  the  public  safety  may  require  it,  is 
authorized  to  suspend  the  privilege  of  the  writ  of  habeas  corpus 
in  any  case,  or  throughout  the  United  States  or  any  part 
thereof.  And  whenever  and  wherever  the  said  privilege  shall 
be  suspended,  as  aforesaid,  no  military  or  other  officer  shall 
be  compelled,  in  answer  to  any  writ  of  habeas  corpus,  to  re- 
turn the  body  of  any  person  or  persons  detained  by  him  by 
authority  of  the  President ;  but  upon  the  certificate,  under 
oath,  of  the  officer  having  charge  of  any  one  so  detained,  that 


^Glole,  3d  S.  37th  Cong.  pp.   554,  1056-1057. 

[62] 


SELLEKY — Lincoln's  suspension  of  habeas  coKrus.     275 

such  person  is  detained  by  him  as  a  prisoner  under  authority 
of  the  President,  further  proceedings  under  the  writ  of  habeas 
corpus  shall  be  suspended  by  the  judge  or  court  having  issued 
the  said  writ  so  long  as  said  suspension  by  the  President  shall 
remain  in  force  and  said  rebellion  continue. 

Sec.  2.  And  be  it  further  enacted,  That  the  Secretary  of 
State  and  the  Secretary  of  War  be,  and  they  are  hereby,  di- 
rected, as  soon  as  may  be  practicable,  to  furnish  to  the  judges 
of  the  circuit  and  district  courts  of  the  United  States  and  of 
the  District  of  Columbia  a  list  of  the  names  of  all  persons,  citi- 
zens of  States  in  which  the  administration  of  the  laws  has 
continued  unimpaired  in  the  said  Federal  courts,  who  are  now, 
or  may  hereafter  be,  held  as  prisoners  of  the  United  States, 
by  order  or  authority  of  the  President  of  the  United  States  or 
either  of  said  Secretaries,  in  any  fort,  arsenal,  or  other  place, 
as  State  or  political  prisoners,  or  otherwise  than  as  prisoners 
of  war ;  the  said  list  to  contain  the  names  of  all  such  who  re- 
side in  the  respective  jurisdictions  of  said  judges,  or  who  may 
be  deemed  by  the  said  Secretaries,  or  either  of  them,  to  have 
violated  any  law  of  the  United  States  in  any  of  said  jurisdic- 
tions, and  also  the  date  of  each  arrest — the  Secretary  of  State 
to  furnish  a  list  of  such  persons  as  are  imprisoned  by  the  order 
or  authority  of  the  President,  acting  through  the  State  De- 
partment, and  the  Secretary  of  War  a  list  of  such  as  are  im- 
prisoned by  the  order  or  authority  of  the  President,  acting 
through  the  Department  of  War.  And  in  al!  cases  where  a 
grand  jury,  having  attended  any  of  said  couri,*  having  juris- 
diction in  the  premises,  after  the  passage  of  this  act,  and  after 
the  furnishing  of  said  list,  as  aforesaid,  has  terminated  its 
session  without  finding  an  indictment',  or  presentment,  or 
other  proceeding  against  any  such  person,  it  shall  be  the  duty 
of  the  judge  of  said  court  forthwith  to  make  an  order  that  any 
such  prisoner  desiring  a  discharge  from  said  imprisonment  be 
brought  before  him  to  be  discharged ;  and  every  officer  of  the 
United  States  having  custody  of  such  prisoner  is  hereby 
directed  immediately  to  obey  and  execute  said  judge's  order; 
and  in  case  he  shall  delay  or  refuse  so  to  do,  he  shall  be  sub- 
ject to  indictment  for  a  misdemeanor,  and  be  punished  by  a 
fine  of  not  less  than  $500,   and  imprisonment  in  the   common 

[63] 


276  BULLETIN    OF   THE    UNIVERSITY   OF    WISCONSIN. 

jail  for  a  period  not  less  than  six  months,  in  the  discretion  of 
the  court :  Provided,  hozvever,  That  no  person  shall  be  dis- 
charged by  virtue  of  the  provisions  of  this  act  until  after  he  or 
she  shall  have  taken  an  oath  of  allegiance  to  the  Government 
of  the  United  States,  and  to  support  the  Constitution  thereof; 
and  that  he  [or  she]  will  not  hereafter  in  any  way  encourage 
or  give  aid  and  comfort  to  the  present  rebellion  or  supporters 
thereof:  And  provided,  also.  That  the  judge  or  court  before 
whom  such  person  may  be  brought,  before  discharging  him 
or  her  from  imprisonment,  shall  have  power,  on  examination 
of  the  case,  and,  if  the  public  safety  shall  require  it,  shall  be 
required,  to  cause  him  or  her  to  enter  into  recognizance,  with 
or  without  surety,  in  a  sum  to  be  fixed  by  said  judge  or  court,  to 
keep  the  peace  and  be  of  good  behavior  towards  the  United 
States  and  its  citizens,  and  from  time  to  time,  and  at  such 
times  as  such  judge  or  court  may  direct,  appear  before  said 
judge  or  court  to  be  further  dealt  with,  according  to  law,  as 
the  circumstances  may  require.  And  it  shall  be  the  duty  of 
the  district  attorney  of  the  United  States  to  attend  said  exami- 
nation before  the  judge. 

Sec.  3.  And  be  it  further  enacted,  That  in  case  any  of  such 
prisoners  shall  be  under  indictment  or  presentment  for  any 
offense  against  the  laws  of  the  United  States,  and  by  existing 
laws  bail  or  a  recognizance  may  be  taken  for  the  appearance 
for  trial  of  such  person,  it  shall  be  the  duty  of  said  judge  at 
once  to  discharge  such  person  upon  bail  or  recognizance  for 
trial  as  aforesaid.  And  in  case  the  said  Secretaries  of  State 
and  War  shall  for  any  reason  refuse  or  omit  to  furnish  the 
said  list  of  persons  held  as  prisoners  as  aforesaid  at  the  time 
of  the  passage  of  this  act  within  twenty  days  hereafter,  and  of 
such  persons  as  thereafter  may  be  arrested  within  twenty 
days  from  the  time  of  the  arrest,  any  citizen  may,  after  a 
grand  jury  shall  have  terminated  its  session  without  having 
found  an  indictment  or  presentment,  as  provided  in  the  sec- 
ond section,  by  a  petition  alleging  the  facts  aforesaid  touch- 
ing any  of  the  persons  so  as  aforesaid  imprisoned,  supported 
by  the  oath  of  such  petitioner  or  any  other  credible  person,  ob- 
tain and  be  entitled  to  have  the  said  judge's  order  to  discharge 

[64] 


SELLERY — Lincoln's  suspension  op  habeas  corpus.     SYT 

such  prisoner  on  the  same  terms  and  conditions  prescribed  in 
the  second  section  of  this  act :  Provided,  hozuever.  That  the 
said  judge  shall  be  satisfied  such  allegations  are  true:  Pro- 
vided, That  this  act  shall  continue  and  be  in  force  until  the  1st 
of  March,  1864,  and  no  longer.^ 


^Gloie,  3d  S.  37th  Cong.  pp.  1205-1208. 

5 


[65] 


278  BULLETIN    OF   THE    UNIVERSITY    OF    WISCC:7SIN. 


APPENDIX  II. 

THE  HABEAS  CORPUS  ACT  OF  MARCH  3,  1863. 

An  Act  relating  to  Habeas  Corpus,  and  regulating  Judicial 
Proceedings  in  Certain  Cases. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled.  That,  dur- 
ing the  present  rebellion,  the  President  of  the  United  States, 
whenever,  in  his  judgment,  the  public  safety  may  require  it, 
is  authorized  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  in  any  case  throughout  the  United  States,  or  any  part 
thereof.  And  whenever  and  wherever  the  said  privilege  shall 
be  suspended,  as  aforesaid,  no  military  or  other  officer  shall 
be  compelled,  in  answer  to  any  writ  of  habeas  corpus,  to  re- 
turn the  body  of  any  person  or  persons  detained  by  him  by 
authority  of  the  President;  but  upon  the  certificate,  under 
oath,  of  the  officer  having  charge  of  any  one  so  detained  that 
such  person  is  detained  by  him  as  a  prisoner  under  authority 
of  the  President,  further  proceedings  under  the  writ  of  habeas 
corpus  shall  be  suspended  by  the  judge  or  court  having  issued 
the  said  w^it,  so  long  as  said  suspension  by  the  President 
shall  remain  in  force,  and  said  rebellion  continue. 

Sec.  2.  And  be  it  further  enacted,  That  the  Secretary  of 
State  and  the  Secretary  of  War  be,  and  they  are  hereby,  di- 
rected, as  soon  as  may  be  practicable,  to  furnish  to  the  judges 
of  the  circuit  and  district  courts  of  the  United  States  and  of 
the  District  of  Columbia  a  list  of  the  names  of  all  persons, 
citizens  of  states  in  which  the  administration  of  the  laws  has 
continued  unimpaired  in  the  said  Federal  courts,  who  are 
now,  or  may  hereafter  be,  held  as  prisoners  of  the  United 
States,  by  order  or  authority  of  the  President  of  the  United 

[66] 


SELLEEY LII<rCOLN's    SUSPENSION    OF    HABEAS    COKIITS.       279 

States  or  either  of  said  Secretaries,  in  any  fort,  arsenal,  or 
other  place,  as  state  or  political  prisoners,  or  otherwise  than 
as  prisoners  of  war;  the  said  list  to  contain  the  names  of  all 
those  who  reside  in  the  respective  jurisdictions  of  said  judges, 
or  who  may  be  deemed  by  the  said  Secretaries,  or  either  of 
them,  to  have  violated  any  law  of  the  United  States  in  any  of 
said  jurisdictions,  and  also  the  date  of  each  arrest;  the  Secre- 
tary of  State  to  furnish  a  list  of  such  persons  as  are  impris- 
oned by  the  order  or  authority  of  the  President,  acting 
through  the  State  Department,  and  the  Secretary  of  War  a 
list  of  such  as  are  imprisoned  by  the  order  or  authority  of 
the  President,  acting  through  the  Department  of  War.  And 
in  all  cases  where  a  grand  jury,  having  attended  any  of  said 
courts  having  jurisdiction  in  the  premises,  after  the  passage 
of  this  act,  and  after  the  furnishing  of  said  list,  as  aforesaid, 
has  terminated  its  session  without  finding  an  indictment  or 
presentment,  or  other  proceeding  against  any  such  person,  it 
shall  be  the  duty  of  the  judge  of  said  court  forthwith  to  make 
an  order  that  any  such  prisoner  desiring  a  discharge  from  said 
imprisonment  be  brought  before  him  to  be  discharged ;  and 
every  officer  of  the  United  States  having  custody  of  such 
prisoner  is  hereby  directed  immediately  to  obey  and  execute 
said  judge's  order;  and  in  case  he  shall  delay  or  refuse  so  to 
do,  he  shall  be  subject  to  indictment  for  a  misdemeanor,  and 
be  punished  by  a  fine  of  not  less  than  five  hundred  dollars  and 
imprisonment  in  the  common  jail  for  a  period  not  less  than 
six  months,  in  the  discretion  of  the  court:  Provided,  however, 
That  no  person  shall  be  discharged  by  virtue  of  the  provisions 
of  this  act  until  after  he  or  she  shall  have  taken  an  oath  of 
allegiance  to  the  Government  of  the  United  States,  and  to  sup- 
port the  Constitution  thereof ;  and  that  he  or  she  will  not  here- 
after in  any  way  encourage  or  give  aid  and  comfort  to  the 
present  rebellion,  or  the  supporters  thereof:  And  provided, 
also,  That  the  judge  or  court  before  whom  such  person  may 
be  brought,  before  discharging  him  or  her  from  imprisonment, 
shall  have  power,  on  examination  of  the  case,  and,  if  the  pub- 
lic safety  shall  require  it,  shall  be  required  to  cause  him  or 
her  to  enter  into  recognizance,  with  or  without  surety,  in  a 
sum  to  be  fixed  by  said  judge  or  court,  to  keep  the  peace  and 

[6T] 


280  BULLETIN"    OF   THE    UNIVERSITY   OF   WISCONSIN. 

be  of  good  behavior  towards  the  United  States  and  its  citi- 
zens, and  from  time  to  time,  and  at  such  times  as  such  judge 
or  court  may  direct,  appear  before  said  judge  or  court  to  be 
further  dealt  with,  according  to  law,  as  the  circumstances  may- 
require.  And  it  shall  be  the  duty  of  the  district  attorney  of 
the  United  States  to  attend  such  examination  before  the  judge. 

Sec.  3.  And  be  it  further  enacted,  That  in  case  any  of  such 
prisoners  shall  be  under  indictment  or  presentment  for  any 
offence  against  the  laws  of  the  United  States,  and  by  existing 
laws  bail  or  a  recognizance  may  be  taken  for  the  appearance 
for  trial  of  such  person,  it  shall  be  the  duty  of  said  judge  at 
once  to  discharge  such  person  upon  bail  or  recognizance  for 
trial  as  aforesaid.  And  in  case  the  said  Secretaries  of  State 
and  War  shall  for  any  reason  refuse  or  omit  to  furnish  the 
said  list  of  persons  held  as  prisoners  as  aforesaid  at  the  time 
of  the  passage  of  this  act  within  twenty  days  thereafter,  and  of 
such  persons  as  hereafter  may  be  arrested  within  twenty  days 
from  the  time  of  the  arrest,  any  citizen  may,  after  a  grand  jury 
shall  have  terminated  its  session  without  finding  an  indict- 
ment or  presentment,  as  provided  in  the  second  section  of  this 
act,  by  a  petition  alleging  the  facts  aforesaid  touching  any 
of  the  persons  so  as  aforesaid  imprisoned,  supported  by  the 
oath  of  such  petitioner  or  any  other  credible  person,  obtain 
and  be  entitled  to  have  the  said  judge's  order  to  discharge 
such  prisoner  on  the  same  terms  and  conditions  prescribed  in 
the  second  section  of  this  act :  Provided,  howez/er,  That  the 
judge  shall  be  satisfied  such  allegations  are  true. 

Sec.  4.  And  be  it  further  enacted,  That  any  order  of  the 
President,  or  under  his  authority,  made  at  any  time  during 
the  existence  of  the  present  rebellion,  shall  be  a  defence  in  all 
courts  to  any  action  or  prosecution,  civil  or  criminal,  pending, 
or  to  be  commenced,  for  any  search,  seizure,  arrest,  or  im- 
prisonment, made,  done,  or  committed,  or  acts  omitted  to  be 
done,  under  ard  by  virtue  of  such  order,  or  under  color  of 
any  law  of  Congress,  and  such  defence  may  be  made  by 
special  plea,  or  under  the  general  issue. 

Sec.  5.  And  be  it  further  enacted.  That  if  any  suit  or  pros- 
ecution, civil  or  criminal,  has  been  or  shall  be  commenced  in 

[68] 


SELLEKY LINCOLN''s    SUSPENSION    OF    HABEAS    CORPUS.       281 

any  state  court  against  any  officer,  civil  or  military,  or  against 
any  other  person,  for  any  arrest  or  imprisonment  made,  or 
other  trespasses  or  wrongs  done  or  committed,  or  any  act 
omitted  to  be  done,  at  any  time  during  the  present  rebellion, 
by  virtue  or  under  color  of  any  authority  derived  from  or 
exercised  by  or  under  the  President  of  the  United  States,  or 
any  act  of  Congress,  and  the  defendant  shall,  at  the  time 
of  entering  his  appearance  in  such  court,  or  if  such  appear- 
ance shall  have  been  entered  before  the  passage  of  this  act, 
then  at  the  next  session  of  the  court  in  which  such  suit  or 
prosecution  is  pending,  file  a  petition,  stating  the  facts  and 
verified  by  affidavit,  for  the  removal  of  the  cause  for  trial  at 
the  next  circuit  court  of  the  United  States,  to  be  holden  in  the 
district  where  the  suit  is  pending,  and  ofifer  good  and  sufficient 
surety  for  his  filing  in  such  court,  on  the  first  day  of  its  ses- 
sion, copies  of  such  process  and  other  proceedings  against 
him.  and  also  for  his  appearing  in  such  court  and  entering 
special  bail  in  the  cause,  if  special  bail  was  originally  required 
therein.  It  shall  then  be  the  duty  of  the  state  court  to  accept 
the  surety  and  proceed  no  further  in  the  cause  or  prosecution, 
and  the  bail  that  shall  have  been  originally  taken  shall  be  dis- 
charged. And  such  copies  being  filed  as  aforesaid  in  such 
court  of  the  United  States,  the  cause  shall  proceed  therein  in 
the  same  manner  as  if  it  had  been  brought  in  said  court  by 
original  process,  whatever  may  be  the  amount  in  dispute  or 
the  damages  claimed,  or  whatever  the  citizenship  of  the 
parties,  any  former  law  to  the  contrary  notwithstanding. 
And  any  attachment  of  the  goods  or  estate  of  the  defendant 
by  the  original  process  shall  hold  the  goods  or  estate  so  at- 
tached to  answer  the  final  judgment  in  the  same  manner  as 
by  the  laws  of  such  state  they  would  have  been  holden  to 
answer  final  judgment  had  it  been  rendered  in  the  court  in 
which  the  suit  or  prosecution  was  commenced.  And  it  shall 
be  lawful  in  any  such  action  or  prosecution  which  may  be 
now  pending,  or  hereafter  commenced,  before  any  state  court 
whatever,  for  any  cause  aforesaid,  after  final  judgment,  for 
either  party  to  remove  and  transfer,  by  appeal,  such  case 
during  the  session  or  term  of  said  court  at  which  the  same 
shall    have   taken   place,    from    such    court   to   the   next   circuit 

[69] 


282  BULLETIN    OF    THE    UNIVERSITY    OF    WISCONSIN. 

court  of  the  United  States  to  be  held  in  the  district  in  which 
such  appeal  shall  be  taken,  in  manner  aforesaid.  And  it  shall 
be  the  duty  of  the  person  taking  such  appeal  to  produce  and 
file  in  the  said  circuit  court  attested  copies  of  the  process, 
proceedings,  and  judgment  in  such  cause;  and  it  shall  also 
be  competent  for  either  party,  within  six  months  after  the 
rendition  of  a  judgment  in  any  such  cause,  by  writ  of  error  or 
other  process,  to  remove  the  same  to  the  circuit  court  of  the 
United  States  of  that  district  in  which  such  judgment  shall 
have  been  rendered ;  and  the  said  circuit  court  shall  there- 
upon proceed  to  try  and  determine  the  facts  and  the  law  in 
such  action,  in  the  same  manner  as  if  the  same  had  been  there 
originally  commenced,  the  judgmicnt  in  such  case  notwith- 
standing. And  any  bail  which  may  have  been  taken,  or  prop- 
erty attached,  shall  be  holden  on  the  final  judgment  of  the 
said  circuit  court  in  such  action,  in  the  same  manner  as  if 
no  such  removal  and  transfer  had  been  made,  as  aforesaid. 
And  the  state  court,  from  which  any  such  action,  civil  or 
criminal,  may  be  removed  and  transferred  as  aforesaid,  upon 
the  parties  giving  good  and  sufficient  security  for  the  prosecu- 
tion thereof,  shall  allow  the  same  to  be  removed  and  trans- 
ferred, and  proceed  no  further  in  the  case :  Provided,  however, 
That  if  the  party  aforesaid  shall  fail  duly  to  enter  the  removal 
and  transfer,  as  aforesaid,  in  the  circuit  court  of  the  United 
States,  agreeably  to  this  act,  the  state  court,  by  which  judg- 
ment shall  have  been  rendered,  and  from  which  the  transfer 
and  removal  shall  have  been  made,  as  aforesaid,  shall  be 
authorized,  on  motion  for  that  purpose,  to  issue  execution, 
and  to  carry  into  efifect  any  such  judgment,  the  same  as  if 
no  such  removal  and  transfer  had  been  made.  And  provided  also, 
That  no  such  appeal  or  writ  of  error  shall  be  allowed  in  any 
criminal  action  or  prosecution  where  final  judgment  shall  have 
been  rendered  in  favor  of  the  defendant  or  respondent  by  the 
state  court.  And  if  in  any  suit  hereafter  commenced  the  plaintiflF 
is  nonsuited  or  judgment  pass  against  him,  the  defendant  shall 
recover  double  costs. 

Sec.  6.  And  be  it  further  enacted,  That  any  suit  or  prose- 
cution described  in  this  act,  in  which  final  judgment  may  be 
rendered  in  the  circuit  court,  may  be  carried  by  writ  of  error 

[TO] 


SELLEEY LINCOLN^'s    SUSPENSION    OF    HABEAS    CORPUS.       283 

to  the  Supreme  Court,  whatever  may   be  the  amount  of  said 
judgment. 

Se:c.  7.  And  be  it  further  enacted,  That  no  suit  or  prosecution, 
civil  or  criminal,  shall  be  maintained  for  any  arrest  or  impris- 
onment made,  or  other  trespasses  or  wrongs  done  or  commit- 
ted, or  act  omitted  to  be  done,  at  any  time  during  the  present 
rebellion,  by  virtue  or  under  color  of  any  authority  derived 
from  or  exercised  by  or  under  the  President  of  the  United 
States,  or  by  or  under  any  act  of  Congress,  unless  the  same 
shall  have  been  commenced  within  two  years  next  after  such 
arrest,  imprisonment,  trespass,  or  wrong  may  have  been  done 
or  committed  or  act  may  have  been  omitted  to  be  done : 
Provided,  That  in  no  case  shall  the  limitation  herein  provided 
commence  to  run  until  the  passage  of  this  act,  so  that  no  party 
shall,  by  virtue  of  this  act,  be  debarred  of  his  remedy  by  suit 
or  prosecution  until  two  years  from  and  after  the  passage  of 
this  act.^ 


^  PttWc  Laws  of  the  United  States  of  America,  3d  S.  37th  Cong.  pp.  755-758. 


[71] 


284  BULLETIiSr    OF    THE    UiJ^IVEESITY    OF    WISCOXSIN. 


BIBLIOGRAPHY. 

Inasmuch  as  most  of  the  judicial  decisions,  and  the  professional 
works  dealing  with  Habeas  Corpus  such  as  Hurd  and  Church,  and 
George  B.  Davis's  Military  Law,  do  not  discuss  the  evolution  of  the 
views  'of  Congress  upon  the  question  of  habeas  corpus  suspension,  it 
has  seemed  proper  to  cite  only  those  authorities  which  bear  directly 
upon  the  narrower  subject  of  this  essay.  Secondary  works  are  given, 
with  one  exception,  for  the  original  material  they  have  contributed. 

American  Annual  Cyclopaedia,  1864,  1865.  New  York,  1865, 
1866. 

Binney,  Charles  Chauncey:  The  Life  of  Horace  Binney.  Phila- 
delphia. 1903. 

Dunning,  William  Archibald :  Essays  on  The  Civil  War  and 
Reconstruction.     New  York,  1898. 

Globe,  The  Congressional.  Debates  and  Proceedings  of  the 
Thirty-Seventh,  Thirty-Eighth  and  Thirty-Ninth  Con- 
gresses. Washington,  1861-1866. 

Law  Reports : 

Brown  vs.  United  States,  8  Cranch,  110. 

In  re  John  Dugan,  6  D.  C.  131. 

Ex  parte  Merryman,  Taney  C.  C.  246. 

Ex  parte  Milligan,  4  Wallace,  2. 

Mitchell  vs.  Clark,  110  U.  S.  633. 

Prize  Cases,  2  Black,  635. 
Lincoln,  Abraham :     Complete  Works,  vol.  II,  edited  by  Nico- 

lay,  John  G.,  and  John  Hay.  New  York,  1894. 
McPherson,    Edward:     The     Political    History    of   the   United 

States    of    America  during    the  Great  Rebellion.    Second 

edition.     Washington,  1865. 
New  York  Daily  Tribune,  1861. 
New  York  Herald.  1861. 
New  York  Times,  1861. 

[72] 


SELLEKY LliSrCOLN^S    SUSPENSION    OF    HABEAS    COKPUS.       285 

Nicolay,  John  G.,  and  John  Hay:  Abraham  Lincoln:  A  His- 
tory, vols.  IV  and  VHI.  New  York,  1890. 

North  America.  No.  1.  Correspondence  Relating  to  the  Civil 
War  in  the  United  States  of  North  America,  Presented 
to  both  Houses  of  Parliament  by  Command  of  Her  Majesty. 
1862.  London. 

Philadelphia  Enquirer,  1861. 

Public  Laws  of  the  United  States  of  America,  First  Session 
of  the  Thirty-Seventh  Congress.  Third  Session  of  the 
Thirty-Seventh  Congress.  Boston,  1861,  1863. 

Salter,  William :  Life  of  James  W.  Grimes.  New  York,  1876. 

Senate  of  the  United  States  of  America,  Journal  of,  Being  the 
First  Session  of  the  Thirty-Seventh  Congress.  Washing- 
ton, 1861. 

Tribune  Almanac,  1861.  1862.  New  York,  1862,  1863. 

War  of  the  Rebellion,  The:  A  compilation  of  the  Ofificial  Rec- 
ords of  the  Union  and  Confederate  Armies.  Series  H,  Vols. 
n,  V  and  VHI  (cited  under  serial  numbers  as  115,  118 
and  121  War  Records,  respectively).  Washington-,  1897, 
1898,  1899. 

Warden,  Robert  Bruce :  Account  of  the  Private  Life  and  Pub- 
lic Services  of  Salmon  Portland  Chase.     Cincinnati,   1874. 


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Science  series  and  the  History  series.  , 

Persons  who  reside  in  the  state  of  Wisconsin  may  obtain  copies  of 
the  Bulletin  free  by  applying  to  the  Secretary  of  the  Regents  and  pay- 
ing the  cost  of  transportation.  No.  1  of  Vol.  1  of  the  Economics,  Po- 
litical Science,  and  History  series,  Nos.  1  and  3  of  Vol.  2  of  the  Phil- 
ology and  Literature  series.  No.  2  of  Vol.  2  of  the  Science  series,  and 
Nos.  1-5  of  Vol.  1  and  No.  4  of  Vol.  2  of  the  Engineering  series  are 
now  out  of  print  and  can  no  longer  be  furnished.  Bulletins  issued 
since  May  1,  1898,  are  entered  as  second-class  mail  matter  and  no 
charge  is  required  by  the  University  to  cover  cost  of  postage.  The 
postage  required  for  such  of  the  earlier  numbers  as  can  now  be  fur- 
nished is  as  follows:  Econ.  ser.,  Vol.  1,  No.  2,  8c;  No.  3,  13c;  Vol.  2, 
No.  1,  4c;  Phil,  ser..  Vol.  1,  No.  1,  5c;  Sci.  ser.,  Vol.  1,  No.  1,  2c;  No.  2, 
2c;  No.  3,  3c;  No.  4,  3c;  No.  5,  10c;  Vol.  2,  No.  1,  2'c;  Eng.  ser..  Vol.  1, 
No.  6,  2c;  No.  7,  3c;  No.  8,  2c;  No.  9,  4c;  No.  10,  3c;  Vol.  2,  No.  1,  4c; 
No.  2,  2c. 

Any  number  of  the  Bulletin  now  in  print  will  be  sent  postpaid  to 
persons  not  residents  of  Wisconsin  from  the  office  of  the  Secretary  of 
the  Regents  on  receipt  of  the  price.  Title  pages,  tables  of  contents, 
and  indexes  to  the  first  two  volumes  of  all  series,  except  the  new  Eco- 
nomies and  Political  Science  series  and  the  new  History  series,  have 
been  issued  and  will  be  furnished  without  cost  on  application  to  the 
University  Librarian.  Communications  having  reference  to  an  ex- 
change of  publications  should  be  addressed  to  the  Librarian  of  the 
University  of  Wisconsin,  Madison,  Wis. 


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